A year and a half ago, when President Obama signed his executive order funding embryo-destructive stem-cell research, I argued in The Weekly Standard that he was perpetuating a needless stem-cell war, that his decision was “bad ethics, bad science, and bad politics.” Add “bad law” to the list. Earlier this week, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia ruled that Obama’s stem-cell policy runs afoul of federal law. [...]
Earlier this week Chief Judge Royce Lamberth ruled that the funding guidelines issued by the National Institutes of Health (NIH) pursuant to Obama’s executive order violate the Dickey-Wicker Amendment. This Amendment, in effect since 1996, prohibits the federal funding of “research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death.” Judge Lamberth’s ruling dismissed the so-called “use-derivation” distinction (by which some would defend Obama’s policies) as mere book-keeping:
This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written.
It shouldn’t be surprising that Judge Lamberth finds the “use-derivation” distinction unconvincing. President Clinton’s Bioethics Commission actually reached the same conclusion: “we believe that this [distinction] is a misrepresentation of the new field of human stem cell research.” Because the Commission supported embryo-destructive research, it urged that the Dickey-Wicker Amendment be overturned. But so long as the Amendment remains valid law, Judge Lamberth is obliged to rule according to its language. Unless Congress overturns the law, Obama’s stem-cell policy appears to be bad law.
One bit of advice from O'Rourke to Obama in March 2009:
If you want to kill little, bitty babies, get Congress to pass a law to kill little, bitty babies, if you can. I'm not going to bother arguing with you about whether it's wrong. Surely you too gazed at the sonogram screen and saw a thumb-sized daughter tumbling in the womb, having the time of her life. And a short life it will be, in a Petri dish. But we've already established that you don't know wrong from right.