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Russell Korobkin

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A Stem Cell Shock

Posted: 08/26/10 07:40 PM ET

Since 1996, Congress has annually renewed an obscure amendment to spending bills that prohibits the use of federal money for scientific "research in which... embryos are destroyed, discarded, or knowingly subject to risk of injury or death... " The Clinton, Bush, and Obama administrations have all interpreted the so-called Dickey-Wicker Amendment to mean that government funds cannot support the creation of embryonic stem cell ("ESC") lines, a procedure that destroys the donor embryo, but that there is no statutory bar to funding scientists who use the resulting stem cell lines as tools in the search for cures for a raft of debilitating diseases and disabilities. Since the appearance of Dickey-Wicker, ESC lines have been created with mostly private money, and successive administrations have used presidential proclamations and Executive Orders to spar over whether federal dollars would be employed to turn these raw materials into treatments.

This consensus was upended spectacularly on Monday when a federal district court judge in Washington, D.C., determined that Dickey-Wicker prevents the use of tax dollars to support researchers who work with embryonic stem cell lines, not just those who create them from embryos. The ruling, if its stands, will not only block the Obama administration's relaxation of Bush-era funding rules and throw the nation's stem cell research effort into disarray, it will even, ironically, render the trickle of money that the Bush administration allowed to support ESC research illegal.

In a lawsuit brought by two scientists who conduct research on adult stem cells -- which do not require embryos to produce - and claim a reduced chance of winning federal funding for their projects if they have to compete with the embryonic stem cell crowd, Judge Royce Lamberth ruled that the prohibition on research in which embryos are destroyed extends also to research that uses materials for which embryos are destroyed. To defend this expansive reading of Dickey-Wicker, Lamberth starts with the proposition that "research" is by definition a "systematic investigation." True enough. Then, in a spectacular leap of logic, he concludes that any research that bears a relationship to research ineligible for federal funds is part of the same "project" and therefore also ineligible.

This interpretive logic proves far too much and admits to no reasonable boundaries of what constitutes a particular research endeavor. It would equate research on acorns with research on oak trees, research on milk with research on cows, and research on air with research on oxygen. Under Laberth's reasoning, the federal government should be precluded from funding research on induced pluripotent stem cells ("iPSCs") -- cells that act much like ESCs but are made by reprogramming adult stem cells and do not require embryos. Because iPSCs are programmed to act like ESCs, iPSC research cannot be done without using ESCs as comparison cells.

If Lamberth's ruling is wrong, how then should the contours of Dickey-Wicker be understood? The key is to remember the Dickey-Wicker is an appropriations rule that concerns only what type of projects may receive federal financial support, not what projects are legally permissible. The relevant question, therefore, is for what purpose the requested federal money would be used. If the money sought is to be used for a prohibited purpose -- i.e., destroying embryos -- the law will not permit funding. If the money will be used for any other purpose, the grant is legally permissible.

According to Judge Lamberth, "had Congress intended to limit the Dickey-Wicker [sic] to only those discrete acts that result in the destruction of an embryo... Congress could have written the statute that way." But this is, in fact, exactly the only reasonable way to interpret the amendment's limitation of the funding prohibition to research "in which" embryos are destroyed, when Congress might have barred funding of research "related to," "associated with" or "that builds upon" embryo destruction.

Congress has the power to withhold taxpayer funds from research that makes use of cells derived from embryos. But it has not done so.

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Russell Korobkin is a professor of law at UCLA and the author of Stem Cell Century: Law and Policy for a Breakthrough Technology.