In the great tradition of American litigation, will the fate of human embryonic stem cell research be decided in the courts? Earlier this week, US District Judge Royce Lamberth granted an injunction banning Federal funding for the research. This overturns not only President Barack Obama's relatively liberal guidelines for research on embryonic stem cells, but also President George W. Bush's more restrictive ones.
The Department of Justice has announced that it will appeal the decision.
The news has appalled supporters. A New York Times editorial described the injunction as "a huge overreach" of judicial power which would be "a serious blow to medical research" if it succeeds. The head of the National Institutes of Health, Francis S. Collins, said that it pours sand in the engine of medical progress.
His agency has already declared that 50 pending requests for new funding will not be considered. About a dozen other requests for US$15 million to $20 million which were likely to be approved have been frozen. Another 22 grants of about $54 million which are due for renewal in September will be cut off.
The decision was criticised as politically inspired. Jonathan Moreno, a University of Pennsylvania bioethicist with close ties to the Obama Adminstration commented disgustedly: "What the opposition to this legitimate and globalized field has been unable to do through science and the ballot box they are trying to do through the courts." Slate columnist William Saletan was so disconsolate that he moaned: "I never thought I'd say this, but I'm starting to miss George W. Bush."
The lawsuit was brought by two researchers who work exclusively on adult stem cells, which do not involve the destruction of embryos. James L. Sherley, a biological engineer at Boston Biomedical Research Institute, and Theresa Deisher, of Ave Maria Biotechnology Company contended that the Dickey-Wicker Amendment, which was first passed in 1996 and has been renewed every year since as a rider to appropriations bills for the Department of Health and Human Services, forbids funding for hESC research.
President Bush and President Obama differed on their views on the destruction of human embryos for research. But they did agree that destroying them and using the by-products were two entirely different issues. All subsequent regulation has rested upon that assumption. No Federal funding has ever been made available for the destruction of embryos, but work on embryonic stem cells was supported by both presidents, albeit in different ways.
But Judge Lamberth firmly declared that this assumption is wrong.
"Despite defendants' attempt to separate the derivation of ESCs from research on the ESCs, the two cannot be separated. Derivation of ESCs from an embryo is an integral step in conducting ESC research… If one step or epiece of research' of an ESC research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment."
True, two Presidents and Federal agencies have been interpreting the Amendment differently for nearly a decade, but Judge Lambert says that this is clearly mistaken: "as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on eresearch in which a human embryo or embryos are destroyed'".
What happens now?
If an appeal fails in the courts, the whole embryonic stem cell debate will go back to Congress. Whether the Obama Administration will have the stomach for leading the charge in a new battle is anyone's guess. With the Democrats facing stiff headwinds as mid-term elections approach, they may decide to defer a highly polarizing stem cell debate, leaving many biologists very down in the dumps.
Embryonic stem cell research will not grind to a halt -- it is still being funded by private investors, state governments, and universities -- but it could slow to a very slow walk.
There is a potential winner in this: California, which has hundred of millions of dollars of funding to splurge on researchers based in the state. The president of the California Institute of Regenerative Medicine, Alan Trounson, declared that the "deplorable" injunction was not altogether deplorable for California: "This decision leaves CIRM as the most significant source of funding for human embryonic stem cells in the US."