Friday, September 10, 2010;
LAST MONTH, Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia issued an injunction barring the federal government from funding research on embryonic stem cells. The judge cited the Dickey-Wicker amendment, which puts off-limits federal dollars for work "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. The National Institutes of Health suspended funding for new embryonic stem cell projects and put in doubt the funding for those already underway.
On Thursday the D.C. federal appeals court lifted Judge Lamberth's order, allowing the government to fund embryonic stem cell research -- for now. The court, which made clear that its decision is preliminary until it has a chance to review the case thoroughly, should make the ruling permanent.
Injunctions should be rare and imposed only when failing to do so would cause irreparable harm to the parties seeking the injunction. Judge Lamberth concluded that the two scientists who sought the ban argued convincingly that their work on adult stem cells would be harmed if embryonic research were not stopped, claiming that funds that would otherwise flow to them would be siphoned off to embryonic projects. The judge dismissed the government's claim of irreparable harm for stopping federally funded embryonic stem cell research because, he concluded, the benefits from such research are "speculative." We believe the judge is wrong on the law and wrong in how he balanced the competing interests.
The Dickey-Wicker Amendment clearly forbids the use of federal money for the destruction of embryos, but the government has not spent a dime on work in which an embryo has been destroyed. The government funds work on cells that have already been harvested -- a technicality, perhaps, for those who morally oppose embryonic research, but one that puts the government in strict compliance.
Judge Lamberth also failed to give full weight to the likely damage done by freezing research. As he implied, it is impossible to know what benefits will accrue from embryonic research. But putting a stop to such federally backed work all but guarantees that life-saving breakthroughs that could help millions might not be realized. That harm far outweighs any possible financial costs to two individual scientists.
To clear up any doubts going forward, Congress should either discard the Dickey-Wicker Amendment or rewrite it to make clear that the federal government is prohibited only from funding work that directly harms a human embryo.