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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, August 24, 2010

Embryonic Stem Cell Funding Ruling

And Also: I like Laura Linney, but as with some past efforts, The Big C on Showtime is not really a great use of her talents. Unpleasant characters don't help. It's like Weeds, I guess -- sounds like I should like it, but the style annoys me.

[And Also: In the "well I have to be at least a minor tool or I will ruin my cred department," Saletan calls the ruling "crazy," but says it is not really the job of the courts to settle the question. The question here is the actual meaning of the provision, genius. The fact that the Senate is where majoritarian legislation goes to die also isn't referenced -- the Dems have a majority now, so it should just be so easy. Well, if life was sane, yes.]

On the hot button judicial review front:

A U.S. District Court judge's ruling yesterday halting the federal funding of embryonic stem cell research with a preliminary injunction pending a trial has left the scientific community stunned, and Congress wondering if any next steps are possible in an election year.

As on might recall, one of President Bush's first "serious moves" was an extended reflection on how to compromise on the stem cell funding issue, resulting in a much criticized "compromise" that allowed some funding on existing stem cell lines, a compromise that very well might be deemed illegal under this ruling. The issue was clearly important to him:

President Bush issued the first veto of his five-year-old administration yesterday, rejecting Congress's bid to lift funding restrictions on human embryonic stem cell research and underscoring his party's split on an emotional issue in this fall's elections. ... Some conservatives also criticized the veto. "I am pro-life, but I disagree with the president's decision," said Senate Majority Leader Bill Frist (Tenn.), a heart surgeon who is weighing a 2008 presidential run. "Given the potential of this research and the limitations of the existing [human embryonic stem cell] lines eligible for federally funded research, I think additional lines should be made available."

It would be ideal if such legislation was passed again, this time the President presumably would sign it into law, but the idea that something even some conservatives support would actually get through the current basket case U.S. Senate is somewhat unclear. The lawsuit targeted an executive order that tried to expand funding restricted under Bush (rescinding a more open policy under Clinton) and still stay loyal to a current funding barrier, regarding:

(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under” applicable federal regulations.

Lest we get a totally wrong idea here, the district court judge [D.C., so this isn't just about research in institutions in one part of the country, but funding at large] was not just being a "wingnut" or whatever regarding this issue. First, he originally rejected the standing of the plaintiffs, who were concerned about protecting embryos and competition of funding (wishing to obtain government funding for another type of stem cell research), but was overturned as to the second claim. The reversing panel did lean conservative, but the reasoning could easily one day apply to a liberal group seeking funding.

Second, he rested his argument on the meaning of the statute, not some overall belief that stem cell research was wrong. Again, he originally would have tossed the suit out on standing grounds. This puts a somewhat (but see below) softer light on this dubious argument, though the "balance of hardships" analysis [last bit added] still is rather weak:

The balance of hardships weighs in favor of an injunction. Defendants argue that two interested parties would be injured if the Court issues an injunction: ESC researchers and individuals who suffer from diseases that may be treatable in the future as a result of ESC research. The Guidelines give ESC researchers, like plaintiffs, the opportunity to compete for NIH funding. The injunction, however, would not seriously harm ESC researchers because the injunction would simply preserve the status quo and would not interfere with their ability to obtain private funding for their research. In addition, the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative. It is not certain whether ESC research will result in new and successful treatments for diseases such as Alzheimer’s and Parkinson’s disease.

Plaintiffs’ injury of increased competition, however, is not speculative. It is actual and imminent. Indeed, the Guidelines threaten the very livelihood of plaintiffs Sherley and Deisher.

He wanted to hold that the harm to the plaintiffs here was speculative but was overruled. But, if the regulations were legitimate, the argument would still fall -- embryonic stem cell researchers would be wrongly denied funding. The idea that this would not in some fashion affect private funding also sounds -- to be generous -- questionable. See also here. So, the bottom line rests on the judge's interpretation of the statute. Judicial review allows overriding executive and legislative action when it runs counter to the law of the land, including the federal law being executed. [Art. VI]

President Obama,* and Bush in a lesser way, in effect thought the provision barred the actual destruction of embryos, not all research on the product of such action. Clinton as well. After all, if you allow research on existing lines, and give a penny of government money to someone connected to it, the alternative would be to be supporting "research in which" an embryo is destroyed. The use of the present tense appears to prevent funding of direct and active events, not the result thereof. See here for a scientific perspective [including comment "Zach"].

The judge disagreed:

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.

The important thing to remember here is that this is not merely about a reasonable interpretation of the statute in question, though many don't find this to be one. Under what is known as "Chevron deference," if a statute is silent or ambiguous, administrative agencies are given the discretion to put forth a reasonable interpretation. This is one reason why who appoints these people and who fills the positions are so important -- there is a great level of discretion, which can have significant impact in lots of areas. Something to keep in mind when votes depend on personal likability or some other such rationale.

But, the judge here held that the provision -- at least as a preliminary matter -- does not appear ambiguous. So, discretion is not there. This is dubious at best. At the very least, there appears to be some debate over what the provision allows, even if on balance you think Bush's policy (which again very well might have fell under this ruling) is the best. Again, this isn't just about morality or whatever -- it is about what the law says. Not what Obama should do even ala Bush, but what he must do. An injunction of significant funding should not rest on such a slim reed. Is this a case of a judge overruled who bends the other way?

As seen in the Prop 8 battle, this is long and drawn out process. The best policy in these cases is to have Congress pass a new law that clearly (as clear as they can) sets forth the rules. But, modern realities hinders such votes, especially in controversial areas. Still, stem cells is one of those areas where there is some bipartisan support, so there is hope. As to advances in the area, the idea that developments have made the matter moot is rather dubious.

To be continued.

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* In part:

The Obama administration expanded the number of stem cell lines created with private money that federally funded scientists could research, up from the 21 that President George W. Bush had allowed to 75 so far. To qualify, the NIH insisted on evidence that the woman or couple who donated the original embryo did so voluntarily and were told of other options, such as donating to another infertile woman.

Some were upset he didn't go further; I do not claim to know the ins and outs of the rules set forth. Still, baby steps is a norm here -- see also, his administration's piecemeal attempts to protect same sex couples when federal law allows them to do so.