Yesterday’s opinion by District Court Judge Royce Lamberth enjoining federal funding of human embryonic stem cell (hESC) research sent shockwaves throughout the medical research community. As usual in this area, the implications of the decision, rather than the legal analysis, is getting all the air time. I’ll discuss the statutory interpretation issue on which the case turns.
The legal issue is the proper interpretation of the Dickey-Wicker Amendment, an obscure provision attached by Congress to omnibus appropriation bills every year since 1996. The amendment 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 this language to mean that the NIH may not fund the creation of embryonic stem cell lines, a procedure that destroys a 5-day old donor embryo (known as a blastocyst) by removing its inner cell mass. The conventional wisdom has always been that Dickey-Wicker does not speak to the question of federal funding of research on hESC lines themselves. These hESC lines, once created, replicate themselves, and the cells are shipped by the institutions that manage them to researchers around the world. The distinction matters a lot, because creating hESC lines isn’t all that hard or all that expensive, relatively speaking, and researchers don’t need a huge number of cell lines to work with. It is not much a problem to rely solely on private funding to create these research materials. What costs hundreds of millions of dollars, and requires substantial federal support, is funding the thousands of scientists who use hESC lines to study human development and search for cures for a range of disabling illnesses and conditions. The Bush Administration largely refused to provide this funding, but it did not believe it was so constrained by Dickey-Wicker. By Executive Order, Obama allowed NIH funding of hESC research, with the qualification that the hESC lines funded must come from excess IVF embryos that would have been destroyed even if not used to create cell lines.
Judge Lamberth surprisingly interpreted Dickey-Wicker to prevent the use of tax dollars to support researchers who do any work using hESC lines as an input. One might at least plausibly argue for this result based on the principle that underlies Dickey-Wicker: that is, if Congress’ goal is to avoid dirtying the federal government’s hands with complicity in the destruction of embryos, perhaps research that relies on embryo destruction somewhere upstream should be ineligible for funding. But Lamberth claims that his result is supported by the unambiguous language of the Amendment. I find this argument utterly unconvincing.
Lamberth’s focus is on the word “research.” First, he relies on regulatory and dictionary definitions to establish that research is a “systematic investigation.” So far, so good. But from this he concludes that any research that relies on upstream embryo destruction is part of the same “project” as the destructive activity itself and therefore ineligible for federal funding. The conclusion simply doesn’t follow from the premise.
The key language here is not the word “research,” but rather the phrase “in which.” That is, Dickey-Wicker does not prohibit federal funding of research that is “related to,” “associated with” or “has a connection to,” or “builds upon the fruits of” embryo destruction. It only prohibits funding of research “in which” embryos are destroyed. It is important to remember that Dickey-Wicker is an appropriations rule, so the reasonable interpretation of the scope of the “research” in question is to follow the money in the grant request. If the grant application seeks money for an acitivity that directly results in embryo destruction, this proposal constitutes research “in which” the embryo is destroyed. If an applicant seeks money to study an existing hESC line, the research in question is not research “in which” the embryo is destroyed.
ruuffles says:
DOJ just announced they’re going to appeal.
Also why is “h” lowercase in hESC?
August 24, 2010, 6:25 pmADF Alliance Alert » Shocking stem cell decision says:
[...] Korobkin writing at The Volokh Conspiracy: “Judge Lamberth surprisingly interpreted Dickey-Wicker to prevent the use of tax dollars to [...]
August 24, 2010, 6:44 pmJohn L says:
DOJ ought to get a stay pending the appeal since the balance of harms also heavily favors one.
August 24, 2010, 7:09 pmGrad Student says:
A lowercase h is well established terminology in the field. I suppose a good rationalization is that ‘h’ is in lower-case as it’s a modifier of the important term, that is, embryonic stem cell, indicating the origin. The fact that these cells are human in origin, is arguably less important than the fact that they are embryonic, and therefore pluripotent, which is the point of the cell line.
See by extension, mES cells for mouse embryonic stem cells and so on.
August 24, 2010, 7:12 pmBaseballhead says:
*cough*activistjudges*cough*
August 24, 2010, 7:41 pmruuffles says:
Thanks. Previously only seen that used with bigger words.
August 24, 2010, 7:47 pmSteven Lubet says:
Judge Lamberth once declared all of U.S. extradition law unconstitutional, so he seems to have a way with sweeping rulings.
August 24, 2010, 8:06 pmJustin Levine says:
Unfortunately, language is rarely concrete enough to pin down in an easy manner. If it was, we could use computers or high schoolers to interpret laws, not judges. I agree that the interpretation as advocated in the post above is pretty strong (and leads to policies that I am sympathetic to), but I can still see the other side having a plausible interpretation as well.
Best solution: Simply have Congress pass a law clarifying things to allow the funding to continue. Unlike Constitutional questions, this dispute over a statutory interpretation ought to be an easy fix (especially with the current make up of the Executive and Legislative branches).
August 24, 2010, 8:12 pmnewrouter says:
the embryonic stem cells are producing nothing useful but grants to leeches on the fed gov’t
August 24, 2010, 8:14 pmRoscoe Raines says:
As to all but the last quoted phrase, I’d agree. I doubt that there has been lot of case law interpreting “in which” in this context, but to me, it seems entirely reasonable to construe “in which” to include the activity “downstream” from from the destruction – part of the same continuous course of conduct. Otherwise, the words used are no broader than a simple prohibition of paying federal funds “to destroy an embryo.” That’s all the words would mean if you read “in which” as Korobkin suggests – the only thing prohibited would be paying for the instantaneous act that produces the destruction. From the fact that they chose broader words than that, normal rules of construction would suggest that they meant to prohibit more than that. This is a case of reading the words, not the minds of the legislators. It seems incorrect, if at all, just because most of us cynically assume that legislators didn’t really mean their words to have any effect other than political.
August 24, 2010, 8:19 pmRoger says:
Why is this shocking? I thought that Dickey-Wicker was interpreted this way ever since 1996. The Democrats could change this anytime they wanted to.
August 24, 2010, 8:31 pmGuy says:
Remind me again why textualism constrains a judge more than intentionalism or purposivism? At least with the latter two modes of interpretation, the judge is openly explaining the rationale for the decision in the opinion and grounding it in the legislature’s will instead of hiding behind word games.
August 24, 2010, 8:42 pmShaker Srinivasan says:
Sec 509 (a) (2) reads:
research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk…
Since we are talking about words and phrases here, the above clause is written in present tense to qualify the nature of the research that has been restricted. What is done after the fact [ex post destruction of the embryos] with the hESCs cannot be construed as in violation of the Dickey-Wicker restriction.
August 24, 2010, 8:44 pmSteve says:
Korobkin is not suggesting that only the instantaneous act is prohibited. The entire research project in which the embryo is destroyed is also prohibited. What isn’t prohibited, under Korobkin’s reading, is an entirely new research project which happens to build upon the findings of a prior prohibited project.
August 24, 2010, 9:09 pmpublic_defender says:
You could also say that the “[b]est solution” is to “[s]imply have Congress pass a law clarifying things to [ban] the funding. . . .”
Whenever a statute is the least bit ambiguous, both sides sometimes say, “the legislature could have adopted the other side’s view, but it did not, so we win.” That’s not persuasive unless the legislative language really is clear, in which case the argument isn’t needed.
Since I haven’t read the opinion in this case, I’ll stop my analysis here.
August 24, 2010, 9:26 pmzuch says:
Indeed. In a kind of scientific Six Degrees Of Kevin Bacon, Lamberth’s ‘logic’ here is that anything that derives — that follows ‘downstream’ — from work that involves creation of ESCs is just a continuation of that work, and by benefitting from this earlier (presumably immoral) work also inherits the taint of the prior ‘bad act’ (and maybe even indirectly encourages such bad acts). But the very same ‘logic’ could then be used to ban the federally funded hiring of any biology graduate that happened to be conversant in developmental biology as part of their thesis examination, including knowledge of the properties of stem cells and the mechanisms of cell differentiation as elucidated by studies that used ESCs. And then those graduate students trained by such a person even if that person wasn’t federally funded, would inherit the taint, and so forth and so forth. Pretty soon, all of biology becomes contaminated, and can’t be funded. This can hardly be what Congress meant.
Cheers,
August 24, 2010, 9:26 pmzuch says:
Indeed, if we assume that the only plaintiffs with proper standing are the other researchers that are alleging a “competitor” standing for such funding (as the appeals court ruled), it is quite apparent that the damages are monetary, and monetary damages are the type of damages most easily redressed if such is found warranted at trial.
Cheers,
August 24, 2010, 9:31 pmPQuincy says:
Roscoe maintains: “it seems entirely reasonable to construe “in which” to include the activity “downstream” from from the destruction — part of the same continuous course of conduct.”
But the whole point is that there is no “continuous course of conduct” except in the most general sense that the future follows the past.
The research involved is (or was) done by different people, at different times and institutions, for different purposes. One research agenda involves the making of hESC from blastocysts, although by now that’s apparently relatively well-known, and barely constitutes ‘research ‘per se.
The many other research agendas that employ (among many other reagents) hESC are each independent, pursue different questions, methods, and hypotheses, and cannot be meaningfully be described as “a continuous course of conduct” any more than all research using uranium can be called a single course of conduct.
Who knows what the law will say, but the scienctific/ institutional context is pretty clear, and does not support Roscoe’s or the judge’s interpretation. But naturally, one of the fundamental rules of scholastic (legal) theology is that words mean what the experts say they do, so I suppose there’s no predicting what higher courts will do.
August 24, 2010, 10:00 pmOrenWithAnE says:
Then you would have to explain how Pres. Bush allowed some stem cell research to continue. Under this ruling, both Obama and Bush’s policies are verbotten.
One distinction made in the opinion is that this research is downstream because it relies on the actual materials derived from the destruction of embryos.
That physical link is quite a bit more than your parade of ridicules suggest, although as RK points out, it might not be enough to cover the ‘research in which’.
I think human beings are capable of (and empirically I’ve seen them do it!) distinguishing certain conduct as being logically related in a fashion to render it appropriate to delineate them with the same noun.
Or are you the kind of guy that, when asked if you’ve cooked dinner, responds “No, but I’ve chopped this salad and cooked this steak”?
August 24, 2010, 10:59 pmJoe says:
this dispute over a statutory interpretation ought to be an easy fix (especially with the current make up of the Executive and Legislative branches).
Yes, after all, if a majority of each house of the legislature passes it … oh wait ….
Some conservatives actually opposed President Bush’s veto (his first) of a reversal of his policy (which very well might not have been allowed under this ruling), so you’d think it’s possible, but life simply is not as sane (sic) in the U.S. Senate as it was even back in 2006.
August 24, 2010, 11:02 pmReaderY says:
I think the court got it right. It’s utterly disengenuous to say that if entity A conducts research and then passes the embryos to entity B which destroys them, it’s not research in which embryos are destroyed. The law looks at substance, not formalities.
One could conduct a contract killing by carefully dividing the task among multiple people so each claims to intend only a part and none intend the entire deed, but any judge would look at the enterprise as a whole rather than focusing on the task of each individual. So here.
Any view that focuses on substance would consider the entire enterprise to be “research in which embryos are destroyed”
August 24, 2010, 11:04 pmJoe says:
entirely reasonable to construe
Chevron deference would require more than that; closer to: entirely unreasonable not to construe
August 24, 2010, 11:06 pmbillo says:
It’s interesting to contrast this with the thread on the Ohio decision regarding retained autopsy tissue. Decisions which limit research are “shocking,” but those which might allow it apparently are as well.
August 24, 2010, 11:08 pmReaderY says:
It should be noted that since African-Americans had been held to be members of “the whole human family” who were nonetheless “beings of an inferior order” by the Dredd Scott Court, and were not established to be persons in the full sense of that term until the 14th Amendment settled the matter.
The 13th Amendment was necessarily intended to apply to a class of beings which are regarded as human yet are not regarded as persons “in the full sense of that term.” Otherwise it would have no application at all.
Human embryos fit that class, just as negros seen from the eyes of the more extreme 19th Century racists did. The 13th Amendment covers even that — it abolished slavery not necessary because blacks were to be regarded as the equal of whites, but because slavery as such is regarded as inherently evil and immoral and detrimental to society. And as the reaction to the Tuskegee syphillis expermients demonstrates, it cannot be denied that medical experimentation on humans for purposes other than their well-being and which results in intentional harm to them is a classic example of slavery in its modern manifestations.
The Dickey-Wicker Amendment is within Congress’ powers not only under the Spending Clause, but under the Enforcement Clause of the 13th Amendment. It therefore deserves the liberal construction which federal courts have universally given to federal statutes exercising 13th Amendment enforcement-clause powers. A niggardly construction that deprives it of substance is completely inconsistent with the Enforcement Clause’s purposes.
August 24, 2010, 11:12 pmJustin Levine says:
Public_Defender (@ Aug. 24, 2010, 9:26 pm): Good point. Agree wholeheartedly.
Although it isn’t the interpretation I would have come up with, the language in the statute is opaque enough such that I think its an overstatement to say that this is somehow a “shocking” decision.
August 24, 2010, 11:38 pmJesse Wendel says:
I’m shocked — shocked! — that the usual suspects are not howling about activist judges. Why is that do you think, hmmmm? IOIYAR. (Or do they [and only they] live inside their confirmation bias?)
August 24, 2010, 11:56 pmChris says:
As a researcher seeking federal funding I cannot completely agree with this. There is a prestige factor associated with receiving NIH or NSF funding that goes beyond the dollar amount awarded. Funding from the NSF or NIH will help advance a researcher’s career more than an equivalent dollar amount from some other entity.
August 25, 2010, 12:03 amzuch says:
There’s such a thing as intangible ‘materials’, you know. Things like “intellectual property”, “trade secrets”, etc. Where does Dickey-Wicker put a limit on tangible ‘materials’?
But why don’t you try to fight the ‘logic’ … that is, those things flowing from the ‘illicit’ (or ‘immoral’) act acquire the taint (and perhaps also encourage the forbidden act)? If this is the thinking, then it really doesn’t matter whether the downstream benefits are tangible, intangible, or Six Degrees Removed, does it?
Cheers,
August 25, 2010, 1:17 amzuch says:
So give them more money … if and when they are found to deserve it. All I said was that monetary damages are one of the easiest to remedy, and that’s almost unarguable.
Cheers,
August 25, 2010, 1:24 amTexas Lawyer says:
Prof. Korobkin:
I think your analysis makes sense. I read the opinion before reading your post and I was–much to my chagrin, as a supporter of stem-cell research–convinced by Judge Lamberth’s reasoning. His interpretation of “research” seemed compelling. But your explanation of the “in which” modifier puts it in perspective.
My prediction is that the DC Circuit will go with your analysis. Given Chevron deference, I think they’ll say that the statute is, at best, ambiguous and follow the government’s interpretation as reasonable.
August 25, 2010, 1:26 amzuch says:
It truly is amasing how many people (here and elsewhere) seem to think that this was a reasonable decision to issue this injunction…..
Cheers,
August 25, 2010, 1:26 amJohn Howard says:
It only prohibits funding of research “in which” embryos are destroyed.
Not just “destroyed” but also “knowingly subject to risk of injury or death”. This would apply to research into same-sex conception, and therefore to DOMA and federal recognition of same-sex marriages, which would require research that knowingly subjects embryos to risk of injury or death. In fact it would seem that it would enjoin any state from allowing same-sex conception, since all states receive federal money. Is this the avenue to stop same-sex conception research?
August 25, 2010, 2:06 amRicardo says:
The problem here is that embryonic stem cells are not “persons” even under the most expansive legal definition of that term. An embryo could be considered by somebody — not me — to be a person with rights. Embryonic stem cells are not embryos, though, and are incapable of ever developing into a human being. If a cluster of embryonic stem cells possesses “personhood,” so do your skin and blood.
So, at best, the government can use its power to prohibit the taking of life to stop embryonic stem cell research. Medical research cannot be considered slavery even under the most generous set of definitions since the embryo is destroyed in the process of obtaining the stem cells. Whatever human life there was is gone by the time researchers get to studying the stem cells.
The problem with advancing even the pro-life argument here is that the federal government currently does not prohibit fertility clinics from disposing of unused embryos. Destroying an embryo is currently not a crime, so a court cannot read the statute as if it was.
August 25, 2010, 3:11 amOwen H. says:
John Howard has discovered the secret! Te Gheys plan to create same-sex procreation and relegate breeders to the dustbin of history!
Oy vey.
August 25, 2010, 8:58 amsardonic_sob says:
A very, very large chicken named “Wickard v. Filburn” has just found a new roost. I hope you’re not allergic to feathers.
(For those not familiar with this snark, Wickard was a very famous case where it was ruled that since growing your own food to eat, on private property, entirely for personal consumption, meant that you might not buy food in the stream of interstate commerce which you otherwise would have bought, such an act was within the power of Congress to prohibit under the Commerce Clause. The reasoning in the instant case makes just exactly as much sense.)
August 25, 2010, 9:20 amA. Criminal says:
prevent the use of tax dollars to support researchers
The decision itself is one reason, perhaps relatively minor, that tax-supported research is a bad idea: complete disruption for reasons having nothing at all to do with the actual research. And I keep forgetting – which part of the Constitution delegates this funding power to the United States? Some newfangled – oldfangled? – partial shadow?
Anyway, right answer for the wrong reason, which is better than most judgin’.
August 25, 2010, 10:13 amJohn says:
You can’t get an hESC line without destroying an embryo, thus any research on any such line REQUIRES the destruction of at least 1 embryo, which federal law prohibits the funding of.
As for the creation of a cell line being part of the research on such cell lines, there being no other use other than research for creating such lines, again, that points to creation being part of the research to be funded.
As for the preliminary injunction, keeping it in place imposes only delay of funding on possible research, while removing it entails additional destruction of embryoes. Monetary damages are easily corrected in the future, but it is not possible to undestroy an embryo. So a stay is inappropriate for that reason.
August 25, 2010, 10:27 amOrenWithAnE says:
Dickey-Wicker puts a limit on “research in which”, which necessarily requires some judicial interpretation telling us what constitutes the same “research”.
Let me take a silly example. An NIH funded lab harvests human embryos and does research some research on them. They then ‘donate’ those embryos to some random person who destroys or discards them. Does this count as “research in which embryos are destroyed or discarded”? As a matter of natural interpretation of the English language, I would say yes. It was research done on an embryo whose final fate was to be destroyed or discarded.
That is, my reading is that the statute does not have in the predicate the requirement that the researchers themselves to the destroying or discarding. Instead, it forbids their participation in any part of the research.
[ Disclosure: I am currently funded by the NIH, on matters entirely unrelated to stem cells. Of course, I would love to see D-W repealed by Congress. ]
It doesn’t matter at all what the downstream benefits are. It matters whether the research is really ‘downstream’ or part of the same act.
Article I, section 8, clause 1. Otherwise known as the ‘spending clause’.
August 25, 2010, 10:28 amG.R. Mead says:
The “research in which” distinction the post tries to draw is specious. In any study worth the name, the line of cells, their provenance, and method of development are material conditions of the present research, because aspects of their creation as well as care along the way may affect the outcome. Certainly, they will be referenced in the current study and thus are part of the “research in which” the embryos were destroyed as a necessary component of the study.
Newton said he saw further by standing on the shoulders of giants — you would pretend was levitating ?
Your insistence on an artificial line drawn to insulate present work form the material issue of moral concern is simply sophistry. If you substitute for “research using destroyed embryos” the phrase, “research using the corpses of Jewish Holocaust victims” then the consequentialist problem becomes apparent. Refusal to make this kind of parallel simply means you have prejudged the moral consequence of destroying the embryos based on present utility, and bootstrapped your conclusion to the predetermined preference.
August 25, 2010, 10:36 amIAdmitIAmCrazy says:
True, the usual suspects might not have protested. But the editorial board of the NYT sure does:
Or is the “overreach” in the interpretation hinging on “in which”?
The judicial gist of the editorial seems to be that the Judge had the audacity to interpret an “obscure rider” (Dickey-Wicker) differently from the executive. Congressional inaction, we are to believe, disproves the Judge.
Now, that’s shocking!
(Do I have to add that I am rather open to hESC research?)
August 25, 2010, 10:38 amkarrde says:
Only an aside:
Will this finally put to rest the charge that G.W. Bush had outright banned all stem-cell research?
An accurate accounting of the decisions of both Clinton and Bush, which led to this case, clearly show that Bush (and Congress) disallowed all funding of creation of hESC lines, while allowing funding of research using existing hESC lines.
I suspect, though, that the charge that Bush totally outlawed hESC funding will remain in popular memory, unless this case gets much more coverage (via an appeal).
August 25, 2010, 11:36 amOrenWithAnE says:
There is something to be said for adopting an interpretation more conservative than Pres. Bush’s policies…
August 25, 2010, 11:37 amretr2327 says:
John writes:
“You can’t get an hESC line without destroying an embryo, thus any research on any such line REQUIRES the destruction of at least 1 embryo, which federal law prohibits the funding of.”
The short answer to this is simple: that is not what the statute says. Read it again.
In fact, your point proves that Korobkin is correct, because if Congress had wanted to prohibit funding of any research which “requires” the destruction of embryos, it could have, and would have, written the statute in exactly those terms. Instead, it chose to draft the statute in terms prohibiting the funding of research “in which” embryos are destroyed so as to emphasize that it was only barring that particular type of research, and not barring any research which might build upon prior work in which embryos had been destroyed.
August 25, 2010, 11:39 amzuch says:
Agreed, there’s some analogy, but not quite the same: While Wickard involved an application of a general rule to a specific local issue, the ‘Lemberth logic’ here takes a small piece of work, and generalises this to apply to all of biology. In the Wickard case, it might be like saying that home-grown wheat needed to be taxed exorbitantly, and then saying that local wheat in Wickard’s neighbourhood should also be taxed to prevent Wickard from bartering for the wheat he wanted, and then that all wheat across the country should be taxed as well, so that wheat would carry the tax penalty when bartered locally. Or something like that. But that was not the case.
Cheers,
August 25, 2010, 12:06 pmJohn Howard says:
It’s not far from the truth, Owen, though I think most gays are not actively involved or even aware of the research, and many probably aren’t in favor of it at all. But lots are. It is a real area of research and a real goal.
I actually did meet two nice old gentlemen out for a stroll in Cambridge Common about five years ago, where I had set up a sign calling for a ban on same-sex procreation, with pictures of Kaguya the mouse and other information on the research into Postgenderism and Transhumanism. The men were even wearing seersucker suits, just like old Harvard gentlemen are supposed to. They stopped to chat, and said they were geneticists at Harvard. I don’t know if they were gay but that seemed likely by their style and personalities. They were very amiable, but they were serious too, when they pleaded “don’t you think we can do a better job than the breeders?”
August 25, 2010, 12:11 pmzuch says:
Not exactly. hESCs exist in all human embryos, and I don’t think that it’s impossible to study them without creating a hESC cell line. Nor is it (theoretically) impossible to get hESCs and establish a hESC cell line without destroying a blastocyst (although what you would do with the remaining blastocyst is an open ethical question).
There’s no other point other than research?!?!? How about therapy? Stocking future potential body parts? Vanity? Genetic mapping? Food?
But I’d advert to my claim above: That if you would like ban by law all ‘benefits’ that derive from creation of hESC cell lines (such as research that uses such cells), so that you are preventing any incentives that may exist to creation of such, you have to ban any and all research in developmental biology, and probably all biology itself. The more we know, the more polluted the results get from our ‘unethical’ conduct. And that is a travesty and a shame to be prevented at any cost through federal law….
Cheers,
August 25, 2010, 12:24 pmzuch says:
Huh? How so?
Destruction of embryos was not one of the damages alleged by those who had standing to sue.
Cheers,
August 25, 2010, 12:25 pmzuch says:
No. Lamberth claims that no “interpretation” is necessary (and in fact has to claim this, as if there is any chance of a differing ‘interpretation’, he is wrong to overturn the administrative decision).
But “research in which…” — if it is indeed susceptible to one and only one interpretation … if we take it in the straight-forward, common-sense way we would normally judge such a construction — must mean research in which human blastocysts are destroyed. Not research in which human blastocysts are not destroyed (but which use hESC cell lines).
Because the whole section says:
this cabins the scope of the “research”. “Research” must be divisible into units that may be funded or not funded (unless you want to defund all biological research on a Six Degrees of Kevin Bacon ‘guilt’ iteration) or this whole section makes no sense. Once you say that, then it’s clear that the “research” that is prohibited from funding is research which involves the destruction of human blastocysts. This from the plain language. Not other research, even that which uses hESC.
Cheers,
August 25, 2010, 12:41 pmMichael B says:
If the judge’s ruling stands, it may have implications beyond ESCR. If the Dickey-Wicker amendment disallows federal funding for all research that uses cell lines (not just stem cell lines) derived from embryos that were at some point destroyed, then several other cell lines could be implicated, notably HEK293 cells. The “HEK” stands for “human embryonic kidney” and were derived from an aborted fetus in the 1970s. It is a standard cell line and the number of labs in the world that use HEK293 cells is countless. And the embryo from which they were derived was unambiguously destroyed. How would the judge’s reasoning not extend to HEK293 or other non-stem embryonic cell lines?
August 25, 2010, 12:42 pmMatt J. says:
But which is more dangerous? The “word games” you notice and decry, or the mind-reading games they have to play if they profess ‘intentionalism’ or ‘purposivism’? It should be pretty obvious that the latter give the judge too much liberty to do what he wants instead of what the law actually says.
Besides: the whole purpose of putting the law in writing IS so that we can go by the letter of what is written and avoid these mind-reading games in the first place. If the legislator did not write what he meant, then the error is his; he (or they) have to go back and fix it.
August 25, 2010, 12:45 pmzuch says:
Quick answer is no, if the donation is not conditional on the embryos being destroyed and there is no subterfuge or implicit understanding with intent to avoid the restrictions.
If Congress had wished to put restrictions on the transfer of embryos (and for what purposes and under what conditions such would be permitted), they would have done so. If they wanted to require donors of such embryos to obtain in writing assurances that said embryos would not be deliberately destroyed, they would have done so.
Cheers,
August 25, 2010, 12:54 pmzuch says:
Thanks. Then you agree that Lamberth’s ‘interpretation’ of Dickey-Wicker (potentially) forbids pretty much all funding of biological research.
Cheers,
August 25, 2010, 12:57 pmzuch says:
… who stood on the shoulders of giants before them and ….
Once you admit this and insist that such passing down of prior work may carry ‘taint’, you then agree that Lamberth would rule out all funding of biology.
Cheers,
August 25, 2010, 1:01 pmzuch says:
It is when you consider the rule for overruling administrative determinations.
Cheers,
August 25, 2010, 1:03 pmzuch says:
You recall wrongly. In fact, much was made of his ‘compromise’ at the time. He even got excoriated by the anti-abortion foaming battalions for his audacity in such a ‘compromise’. The complaint from the pro-ESC people was (mostly) that the ‘compromise’ was not very effective, in that it severely constrained the work (particularly so the farther down the line), and that the number of viable candidate cell lines was much lower than he claimed.
Cheers,
August 25, 2010, 1:09 pmarch1 says:
I think I can see that considering the scope of the relevant “scientific research [project]” to be broader than that of a specific federal funding request could in some cases prevent abuse (e.g. artificially divvying up a large research initiative into n subprojects, and funding the ineligible-for-federal-funding parts privately).
I don’t see what good it does to take this approach with respect to hESC research done on existing lines, though.
August 25, 2010, 1:24 pmOrenWithAnE says:
This is a classic trial-judge maneuver — protecting your interpretation (which would be reviewed de novo from review by labeling it as a finding of fact (which is reviewed for clear error).
Well, that’s it then. I will credit your position with being internally consistent but I just cannot believe Congress intended their rule to be capable of such evasion.
To me, it makes no sense for Congress to say “You may not use our funds to destroy embryos but you may send them down the hall to someone else to do so”. Granted, Congress has not been at all rational in this entire thing (to wit, they said nothing when Bush promulgated a policy putatively contrary to their will) but this is beyond irrational. It would credit Congress with creating a restriction that is purely on form.
Not in the slightest. Lamberth’s interpretation means that Federal funds may not be used to study embryos whose final fate is destruction, independent of who does that destroying.
They may fund scholars who previously worked on embryos. They may even fund scholars that currently work on embryos provided the projects are sequestered. They may fund a scholar to travel to a conference in which research on embryos are discussed. That you persist on erasing the distinction between actually researching on an embryo that is fated to be destroyed and merely being in some sense related is troubling.
I don’t see what good D-W does at all. But it’s the law and we ought to make a good faith effort to interpret it in line with Congress’ wishes.
August 25, 2010, 2:03 pmsardonic_sob says:
Agreed, there’s some analogy, but not quite the same:While Wickard involved an application of a general rule to a specific local issue [...] in the Wickard case, it might be like saying that home-grown wheat needed to be taxed exorbitantly, and then saying that local wheat in Wickard’s neighbourhood should also be taxed to prevent Wickard from bartering for the wheat he wanted, and then that all wheat across the country should be taxed as well, so that wheat would carry the tax penalty when bartered locally…
Pardon me for being dense – I turn forty next week and my brain is calcifying – but I don’t see the difference in your analogy, especially since I think that you would get EXACTLY the same result. If the law says, “home-grown wheat for personal consumption is taxed at X,” and Wickard grows wheat and his next-door neighbor Smith grows wheat and they just swap the physical crops they produce, and the Congress says that even though (for whatever theoretical reason) they can literally only tax home-grown wheat for personal consumption but these two by trading are arriving at a result which is so analogous that they should still have the power to reach it, I think the Supreme Court wouldn’t even grant cert to Wickard and Smith’s appeal.
If anything, this is STRONGER than Wickard, because while Wickard does have to eat, he doesn’t have to eat wheat, so in the final analysis there is a point where one must make an assumption to justify the law being applied to him on Commerce Clause grounds. Here, so far as I know, there is no assumption required: you can’t get embryonic stem cells without destroying an embryo. All of the tree’s fruit is uncurably poisoned. If you read the law as saying no funding science with cells from a destroyed embryo, there’s no more room to argue.
To me the biggest stretch is opposing the status-quo assumption that some lines were in use before the ban went into effect, and therefore using them couldn’t require the destruction of an embryo post-passage. That logic still seems reasonably sound in the face of the fact that Congress didn’t just say, “No Federal money to do science with hESC, period.”
August 25, 2010, 2:24 pmzuch says:
It ignores the fact that here, where administrative decisions are involved, the first decision (and the one given the most deference), is that of the executive, not the trial judge.
I just said that this was provided that there was not any [demonstrable] attempt to subvert or run around the prohibitions…. <*sheesh*>
Fortunately, they didn’t say that. But I’d note that this wasn’t the issue here, was it?
No. His interpretation is that “fruit of the poisonous tree” cannot be funded (being all of some big amorphous “research”). That includes hESC cell lines, even after the destruction of the blastocyst (and in fact, the way things are done currently, necessarily after).
Why? It’s all part of that scientist’s “research”.
(assuming that said “work on embryos” involved hESC cell line establishment) Why? It’s even more a part of that scientist’s “research”, given no temporal separation. Keep in mind the ban (literally) isn’t on embryonic research, but rather research in which the embryo is destroyed.
Why? Isn’t any “research” activity done there and any following activities then deriving benefit (and ‘taint’) from the “research on embryos”?
I’m not defending it. I’m pointing out Lamberth’s ‘logic’, which does just that.
Cheers,
August 25, 2010, 2:36 pmzuch says:
I agree. I say that Lamberth is insisting that no funding of biological research is permitted.
Or research that depends on knowledge derived from other work that involved the use of hESC cell lines that derived from other work in which human embryos were destroyed….
Let’s say that we find that a specific promoter is involved in differentiation into heart muscle tissue, and that we find that a compound can be used to trigger this promoter, thanks to hESC research. Then, is any further work on this compound also barred from federal study? What if study of this compound and others is used to discover the characteristics of tumor-promoting factors? What if study of these factors leads to discovery of new cancer drugs? Is this research also banned?
Under Lamberth’s ‘logic’, where do you draw the line at permissible ‘taint’? Is there some loophole similar to “inevitable discovery” (from 4th Am. cases) that would keep some parts of biology untainted?
Cheers,
August 25, 2010, 2:47 pmzuch says:
To me the biggest stretch is saying that prohibiting the federal funding of research in which human embryos are destroyed means “prohibiting the federal funding of research that is derived in part from (or through) the results of research in which human embryos have been destroyed”. They didn’t say that. They could have. Case closed.
Cheers,
August 25, 2010, 2:51 pmOrenWithAnE says:
Only if it is not an unreasonable application of the statute. In this instance, Obama’s interpretation renders the statute a mere formality which cannot be Congress’s intent (there is a canon of construction saying that the legislature never intends for a statute to be inoperative).
But that’s just the point — where is that in the statute? Your interpretation indicates that I can use NIH funds to conduct research on an embryo in room 342 and then let my grad student (who is HHMI, let’s say) take the embryos to room 307 and autoclave them. So long as I don’t tell the grad student to destroy them or collude with him in any way, I’m in the clear? It is unreasonable to interpret Congress as writing a statute to mandate such a trivial formality.
The key thing to note is that the statute doesn’t merely forbid funding the destruction of embryos but rather all research that touches the embryo. If Congress has intended to forbid directly funding the destruction of the embryo, they would have written it that way. Instead, the use of expansive language dictates an expansive interpretation.
This is a part/whole distinction that I don’t buy. If a statute forbids me from working on disassembled auto parts, I cannot claim to comply with it merely because I am working with a transmission and a differential.
If an embryo was destroyed to create a hESC cell line, then research physically involving that line is research in which an embryo was destroyed. Whether it happened before or after is irrelevant because Congress did not insert any temporal modifiers into the statute.
No, because such an interpretation would lead to an absurd result that you already pointed out — that no biological research could be funded. Congress didn’t intend that therefore any interpretation that leads to that result must be rejected.
Fortunately, we can exclude that without gutting the statute (because, remember, we are forbidden by canon from making Congress’ statute into a nullity) by interpreting ‘research in which…’ to mean ‘research involving the physical products which have…’.
That is, there is a middle ground between an overly-expansive read and an overly stingy read — one that comports with expectations of basic English and can rationally to be said to be within Congressional intent. Your dichotomy between the over-and-under can be split quit neatly down the middle.
Only when read with the intent of discrediting it. Reading it in good faith provides a clear and workable guideline defining research on the same cell-line as research without delving into your parade of ridicules.
Working with the knowledge is permissible, working with the actual physical products is not.
It’s hard to imagine a more clear and workable construction. Certainly you are not doing yourself favors by saying you can donate it to some random bag-lady off the streets so long as you don’t discuss with her what she’s going to do with them. That’s a nightmare to apply to actual research.
August 25, 2010, 3:08 pmOrenWithAnE says:
So in your mind, a statute that says “You may not engage in activity in which endangered Mahogany tree is destroyed” permits me to purchase a mahogony dining room table, so long as the crafting of the table occurred (as it must) after the tree was felled?
August 25, 2010, 3:13 pmsardonic_sob says:
I would like to point out, incidentally, that I do not agree with either the law itself or Judge Lamberth’s interpretation of it. I agree with most of what you say regarding the matter, and I don’t dispute that if you use his “logic,” you can quite easily arrive at the position that all biological research could easily be found to be within the claimed scope of the law. My posts are really more about my position that a) his position may be stupid but it’s not internally inconsistent or totally irreconcilable with the poorly-drafted statute, and b) we already slid down this slope a long time ago and anybody arguing against his logic (not his interpretation, but the logic he employs in implementing it) is arguing against Wickard, period. Which means they’re arguing against the whole New Deal state, which I suspect many of the people appalled by this decision would never, ever do consciously.
August 25, 2010, 3:33 pmOrenWithAnE says:
If you slept through your classes on statutory construction.
August 25, 2010, 3:36 pmzuch says:
Oh, BS. The legislative intent is that they just didn’t want to pay for the destruction of human blastocysts. They didn’t want their money going to that. That’s what they said (strangely enough). And such a prohibition is not a nullity or inoperative (on the contrary, your implied ‘interpretation’ [below] is the one that seems rather less capable of achieving the intended purpose).
Had they wanted to discourage the destruction of embryos by people other than those that they chose to give money to (but reducing “demand”), they would have written a different law (and one that might, for instance, prohibit federal money from going to IVF clinics, etc.).
Cheers,
August 25, 2010, 3:37 pmzuch says:
Huh?!?!? Where?:
Can we please argue from facts here, please?
Cheers,
August 25, 2010, 3:44 pmsardonic_sob says:
I meant as a matter of making internally consistent logical steps, as in, “Yes, you could read it that way, and it would be logical.” However, that’s why we have Statutory Construction classes and not Logical Reasoning classes in law school. :)
Sorry I wasn’t clear.
August 25, 2010, 3:45 pmzuch says:
I think you have that backwards. If the transmission is not disassembled, I see no (legal) problem in working on it. The legislators clearly had something in mind in specifying “disassembled” (maybe choking babies, I dunno).
I think you’re starting to catch on. I didn’t say that Lamberth’s interpretation was a good one. I said it logically should extend to any work that builds on — derives from — the ‘tainted’ act (the production of the hESC cell line in which the human embryo was destroyed). If the idea is to prevent not only funding of a specific ‘immoral’ act but also to discourage if not prevent any other such non-funded acts indirectly by reducing “demand” for the products of that ‘immoral’ act (be they material or intellectual), then you’d have to stop funding all developmental biology, and eventually all biology that has a spill-over of knowledge, techniques, reagents, procedures, or such from developmental biology. That might indeed be a good incentive for any civic-minded scientists to avoid the destruction (even if non-federally-funded) of human embryos so as to avoid the downfall of Western science, but let’s call it what it is then…..
There is no “overly stingy read”. The read is: “We don’t want our money paying for the destruction of human embryos.” Kind of like: “We don’t want our money paying for abortions.” The latter wasn’t read to mean “we don’t want our money paying for the scholarships of single women who had an abortion and now want to pursue an education rather than care for their unwanted babies.”
Cheers,
August 25, 2010, 4:01 pmzuch says:
How? Why is it right to prohibit (funding of) research using hESC cell lines, but not research using an enhancer, promoter, growth factor, or telomere-modifying enzyme discovered through research using hESC cell lines?
Why is it reasonable to read the first into the legislation when it is clearly not there, but not the second?
Cheers,
August 25, 2010, 4:07 pmJohn says:
When you can do no research unless an embryo is destroyed, that IS research in which an embryo is destroyed.
August 25, 2010, 4:10 pmJohn says:
If your research requires purchasing cell lines that are the result of destroying embryoes, then you clear can’t recieve federal funds as you are using funds to do that.
August 25, 2010, 4:13 pmOrenWithAnE says:
FIFY.
It’s right there. You cannot fund any research in which embryos are destroyed. Not in the beginning, not in the end, not on a train, not on a plane. If an embryo is destroyed, that research cannot be funded.
Of course, begin you logically want to extend it to an absurd result.
If you take Lamberth’s decision for what it actually says — not “builds on” or “derives from” or “is tangentially related” but actually research conducted on the same physical material — then it becomes entirely non-absurd and entirely non-trivial.
You are giving a narrow read to a broad statement. That is stingy.
Any reasonable statutory construction must parse every single word of the statute as relevant to the meaning. If Congress want to write it your way, they would have omitted the research in which clause and written:
You completely elide the words “research in which” from your reading, which is impermissible. It certainly means more than the mere act.
August 25, 2010, 4:14 pmJohn says:
Its quite simple. If the material used in the research starts from a destroyed embryo, then it isn’t eligible for federal funding. If the material doesn’t start from a destroyed embryo, even if the knowledge needed to produce it comes from research from hESC, then it is allowed.
August 25, 2010, 4:16 pmAnthony says:
Perhaps among a certain lunatic fringe (and yes, transhumanists qualify as lunatic fringe). It isn’t theoretically impossible, but it makes human cloning look like an easy project, and in any case, wouldn’t require destruction of embryos (you’d almost certainly be working with unfertilized eggs).
It does, however, forbid federal funding of any research into in vitro fertilization, because there’s no way you can go about that without destruction of embryos (it’s not part of the research; it’s just that you wind up with embryos you have no use for).
August 25, 2010, 4:19 pmzuch says:
The CITES treaty prohibits trade in things that are perhaps legally obtained, in part because there’s a difficulty in determining whether something was or was not legally obtained, and also because allowing “legal” trade of such items encourages blackmarket/illegal activity to supply the item in a way that does cause teh damage sought to be avoided. As I said, this seems to be the ‘interpretation’ placed by Lamberth on the Dickey-Wicker legislation; a punitive one to discourage the private destruction of human embryos. But then that would imply that all ‘product’ of the research should be banned from funding, not just that which used one specific product (the hESC cell lines themselves).
But to answer your question, yes. It prohibits destruction of the tree. If they had wanted to discourage other activities because of the indirect effects of such activities — in supporting “demand” — on tree destruction going forward, they would have done such as CITES does.
Cheers,
August 25, 2010, 4:19 pmJohn says:
Yes, those who had standing to sue didn’t have a direct interest in prohibiting the destruction of embryoes, but the PUBLIC did.
August 25, 2010, 4:26 pmJohn Howard says:
Wait, zuch, so you’re saying that as long as the embryo is created and destroyed with private and state funding, then the rest of the research can go forward with federal money? As in, it’s just a matter of billing those hours to a different source? I don’t think so. That would be a misleading and duplicitious law, if the intention was not to protect people from having their money spent on embryo creation and destruction. It would be merely an accounting and billing technicality, and not effect anything as far as protecting people from having their money spent on embryo destruction.
No, it wouldn’t shut down all research. Projects that didn’t rely on embryos could still get federal funding, and projects that did involve creation and destruction of embryos could still go forward with state money or university money (though again, mere accounting can keep all the projects going full steam, but at least they are distinct research projects, rather than distinct steps in a research project.)
August 25, 2010, 4:29 pmzuch says:
It is you (and Lamberth) that have taken the first step. You’ve added something that was plainly not in the language (“… and any research that uses the hESC cell lines that were produced by a process that destroyed human embryos”). Once you’ve taken that, nothing stops you from running all the way out into right field.
One might even make this a bit clearer: Lamberth concentrates on the meaning of the word “research” and uses this to cover both hESC cell production and use of the hESCs in research as some unified whole.
But what about hESCs that weren’t produced by “research”? What if some commercial company is in the business of mechanically producing hESC cell lines, through tried-and-true cookbook procedures, simply for their own commercial gain?
Cheers,
August 25, 2010, 4:31 pmOrenWithAnE says:
So the statute reads the same whether or not we include or remove the words ‘activity in which’?
You keep insisting that, when it seems quite trivial to cabin this decision into research actually involving the physical cell lines derived from the destroyed embryo.
If I take a painted car and do research on it, that is research in which a car was painted.
I feel compelled to add that while John’s opposition here is part of his longstanding ideological agenda, I am actually quite in favor of such research both as a matter of policy and hard science.
August 25, 2010, 4:43 pmJohn Howard says:
Same-sex procreation would certainly require experimentation on embryos as well as abortion and would certainly put the person at extreme risk of harm. Most people who argue for the right to do same-sex procreation say they would only do it when they deem it to be safe, which means they expect it to have been tested, and it is not going to be safe to bring to birth the very first embryo created using artificial gametes or sythesized DNA. The surrogates will surely sign consent forms agreeing to abort a fetus if it not developing properly, and the labs aren’t going to want to implant the first embryos they create, they’re going to grow them to 6 cells or 24 cells and then destroy them to study them.
So same-sex procreation requires embryo destruction and subjecting people to harm. Therefore, no state that receives federal funding from that act can allow same-sex procreation, but that is what states do when they give marriage licenses to same-sex couples. Can I sue Massachusetts to stop them from allowing same-sex procreation in their 2005 Cloning law?
August 25, 2010, 4:48 pmretr2327 says:
John writes:
“When you can do no research unless an embryo is destroyed, that IS research in which an embryo is destroyed.”
Try it this way: “When you can do no research unless a test tube HAS BEEN broken (no matter where, no matter when), that (IS/IS NOT) research in which a test tube IS broken.” Which answer would you choose on a logic test, or even one on English usage?
If we weren’t talking about embryos, I don’t think people would have so much trouble understanding this distinction.
Oranwithane says:
“So in your mind, a statute that says ‘You may not engage in activity in which endangered Mahogany tree is destroyed” permits me to purchase a mahogony dining room table, so long as the crafting of the table occurred (as it must) after the tree was felled?’
Short answer: yes. Which is why any serious attempt to prevent, e.g., the killing of elephants for their tusks, must prohibit not only the killing of elephants, but also the possession of ivory made from (non-certified) tusks. And will do so in clear and explicit terms. Otherwise, it’s only the killing that is prohibited, not the mere possession of the result.
But in this instance, the Dickey-Wicker amendment, being a compromise crafted to secure a majority, does not criminalize work on cells derived from embryos. Instead, it bars funding work “in which” embryos are destroyed, but does not bar funding any research “in which” stem cells obtained “by” destroying embryos are used.
You have to admit, if Congress had wanted to bar the latter, it would not have been hard to make that intent clear.
August 25, 2010, 4:53 pmzuch says:
No. What they did and what they intended to achieve with what they did are not necessarily the same. They didn’t want funding for “research in which a human embryo or embryos are destroyed” because part of this money would be paying for that said destruction, which they didn’t want to pay for.
That’s not what you said (as I so helpfully highlighted for you):
Clear now?
This just avoids the objection: “Well, the hESC cell line isolation in my project was paid for by department funds and the lab tech’s university salary; you bought the centrifuges and paid my clinical post-docs….” But I agree the two do basically the same thing. There’s no law that you can’t state the same thing two different ways.
Cheers,
August 25, 2010, 4:53 pmzuch says:
Ipse dixit. My favourite argument. But why is the first ‘[re]interpretation’ (keep in mind the statute says nothing about “material”) appropriate and not the second? On what logical basis?
Cheers,
August 25, 2010, 4:57 pmzuch says:
Nonetheless, the public had no standing, even if we grant arguendo that “the public” [who's that?] had “a direct interest in prohibiting the destruction of embryoes”. Those with standing made no such claim of injury. Which is what the question was. Therefore, there’s no injury there that could be irreparable for purposes of issuing an injunction. Courts are only allowed to decide on matters that are properly before them.
Cheers,
August 25, 2010, 5:04 pmzuch says:
Well yes, if you want to reach the conclusion you’d like to reach. Lamberth did it. But will you grant me that it requires an implicit extension of the existing statute:
That’s what you’re reading in there and that wasn’t in the language. But what’s to stop us from writing any number of other such ‘extensions’ of the language? Where do we stop? Where are we forced to stop? How do you derive that hard line (unstated in the legislation) that the ban stops at “materials derived as the end result from research in which a human embryo is destroyed”? What if a growth factor or promoter was isolated from (destroyed) human embryos, then subsequently genetically inserted and produced in GM bacteria (or other mammalian cells)?
Cheers,
August 25, 2010, 5:18 pmzuch says:
Thread winner.
Simply awesome.
Puts things in the proper perspective.
Cheers,
August 25, 2010, 5:20 pmOwen H. says:
The arguments against would be more moving if any of the embryos were destined for anything other than destruction anyway. These are embryos that will never be implanted, and will eventually be destroyed regardless.
August 25, 2010, 6:40 pmzuch says:
The definition of “Research” According To Lamberth:
Anyone want to explain to me why this definition of “research” doesn’t encompass the entirety of the study of biology as a whole, and thus that such a “research” project as the study of biology — if any said biologists have ever had the temerity to destroy an human embryo, which they clearly have — is not barred from receiving any federal funding?
Of course, given this, the plaintiffs have not stated a claim for which they can obtain judicial relief, as they also would be barred from federal funding under this interpretation…..
Cheers,
August 25, 2010, 8:07 pmJohn Howard says:
For the same reason that the study of biology didn’t begin when the first embryo was destroyed to make embyonic stem cells?
And even if something is learned from illicit knowledge, that isn’t like a court case where evidence obtained illegally has to be dismissed, it’s biology and not justice. Knowledge should be used even if it is learned by an illegal act, because it is a fact now that can’t be denied. For example, if by studying the pathology of a crime in which someone was shot in the head, we learn something about brains, we can use that knowledge, without authorizing people to be shot in the head.
August 25, 2010, 9:44 pmzuch says:
WTF does this have to do with what I said? What I said was in two parts: 1). Biology is “research” according to Lamberth. 2). If biologists destroyed embryos, biology funding is barred thanks to the Dickey-Wicker law (which has nothing to do with defining “research”) [Lamberth goes to the dicgtionary and CFR for that]. See if you can respond to me and not the hallucinations ricocheting around in your head. Thanks in advance.
Cheers,
August 25, 2010, 10:27 pmOrenWithAnE says:
Because such an interpretation leads to an absurd result in which the statute sweeps up too much. So we scale it back a little bit to encompass the entirety of the research conducted on the particular materials derived from the embryo.
You could scale it back even further to mean “the experiments conducts on the same day, in the same room, by the same person as the embryo that was destroyed” but that leads to a different absurd result in which the statute sweeps up far too little. So little, in fact, that it sweeps up nothing at all.
When you think about it, neither the co-incidence of time, space or personnel can make a difference. Congress could not have intended that I could lawfully destroy embryos on Monday and then conduct a second NIH-funded study on the hESC on Tuesday. Nor could they have intended that I destroy an embryo in room 342 and then conduct an NFS in room 307. Nor could they have intended that I get Mary to destroy an embryo and then conduct an NFS.
Even taking all three together — getting Mary to destroy the embryo for me in a different room on a different day — still seems like an awfully sophisticated way to claim that my research is not “research in which an embryo is destroyed”.
That’s a fine argument to hear in Congress but is entirely irrelevant in statutory interpretation. Congress banned research in which an embryo is destroyed, not research in which an embryo is destroyed that would otherwise not be.
The law is asinine. It’s counter-productive to science and will likely (if interpreted as it was intended and not repealed) cause the death and suffering of untold thousands. OTOH, the argument that we can rearrange the deck chairs a bit so that the NIH can fund a research project that relies-on-but-doesn’t-itself-commit the destruction of an embryo is dishonest.
As I said above, I’m NIH-funded. One thing I’ve learned from the agency is that when you read the evidence to support what you believed before, you better be damned sure you are right because you will be ripped to shreds otherwise. The good review sessions have a special knack for seeing right through that sort of self-justification.
That’s what’s happened to liberals here. They want to support hESC and somehow they can rationalize to themselves that research on hESC extracted by destroying an embryo is not research that destroys an embryo.
August 26, 2010, 12:05 amzuch says:
But that’s the “definition” that Lamberth used. I guess you agree that his choice of definition led to absurd results and must be wrong. Progress of a sort.
How about if we — when considering whether to fund some particular research — scale it back to the particular research being funded and then ask the obvious question: Does this research that is [potentially] being funded — which is well described in the grant application, believe me — include the destruction of human embryos? If yes, no funding. If no, it’s eligible. We’re not asking whether other research that is not being funded by us included such destruction. Just the stuff that we’re trying to decide if we’re going to fund. Because that’s what the law explicitly tells us to do.
Cheers,
August 26, 2010, 1:25 amOrenWithAnE says:
No, your application of that definition leads to absrud results.
You will note, of course, that he did not enjoin all biological research. He did not enjoin all Federal employment of those in biological research. Why don’t you focus on what he actually did, which was prohibit funding of research on the products derived from killing an embryo.
And that application will describe the materials and methods used. And if embryos were destroyed to create those materials then the research, while it doesn’t “include” the destruction of an embryo directly, is still research “in which” the embryo was destroyed.
Specifically it was “research in which an embryo was destroyed as a prerequisite to creating the materials needed” which, grammatically, must fall under the category of “research in which an embryo was destroyed”. Creating the input is just as much part of the research as interpreting the output.
You wouldn’t say that mixing up buffer or plating cells is not research just because it happens antecedent to some more exciting part of the experiment. Nor is autoclaving the glassware and shelving it when you are done. They are all part of a larger composite action normally referred to English as ‘research’.
August 26, 2010, 9:07 amzuch says:
My consistent application of his definition. Yes, he didn’t enjoin all federally-funded research. Because that would have been stoopid and showed the farce up for what it was. What he did was make up a definition of “research” to fit what he wanted the law to say (and then ignore the fact that this definition by its plain terms would logically require that all biology be defunded.
You make much of the “products derived from killing an embryo” as being some great “bright line” here to avoid absurd results. But you need to read the freakin’ opinion where Lamberth did not read that implicit prohibition into what was intended, but instead used this bogus definition he cobbled together to say that “research” is some kind of unified whole (even if it involves different people and different labs and different funding and different experiments at different times) so that he can say that some research he wants to ban is research “in which a human embryo or embryos are destroyed”, when in fact that research is doing nothing of the sort. I agree he seems to want to reach your proffered “no fruit of the poisonous tree” type of decision-making, but he doesn’t do so in what he writes.
This much is unarguable:
1). Lamberth trots out a definition of “research”. This definition of “research” (which he gets from that ever-handy dictionary and from the Federal Code) says nothing about “research” as a definable unit being delineated by some continuity of physical product or material throughout the corpus of said “research”. Even if it did so, it would not avail Lamberth in avoiding absurd results, as such things as reagents, test tubes, centrifuges, growth media, etc. are pervasive in biology, but it simply doesn’t, and no point arguing this.
2). Lamberth explicitly dismisses the idea that the statute can be held to encompass a “piece of research”; that is to say, that there’s some definable or identifiable chunk of research that is a part — a “piece” — of “research” as a whole (p. 10).
But it’s this refusal to allow partition of “research” that leads to the absurdity of requiring the banning of all biological research because of the “original sin” of some biologists having destroyed a human embryo.
It could be argued that Lamberth constrains the vast reach of his definition by introducing a constraint: “ESC research necessarily depends upon the
destruction of a human embryo.” Of course, this “necessarily depends” was not in the Random House Dictionary definition of the scope of “research”. Lamberth just made it up to reach his preferred outcome. Note that even if we accept this restriction to avoid absurdity in interpretation of the law, it is still of little or no avail: Establishment of hESC cell lines “necessarily depends” on knowledge of initiators, promotors, growth factors, growth media, etc., and use of various reagents and materials developed for cell culture. And any developments that arise in cell culture technique that come from hESC cell line establishment would also be a necessary development for further cell culture work. Any knowledge of initiators, promoters, inhibitors, growth factors, etc. that are necessary in adult stem cell work would also contaminate this work (leading to the banning of the plaintiff’s grants as well by Lamberth were he consistent).
No. The research is what the grant proposer says (s)he will do. This is very clear. It is what they’re getting money for. No one here is getting federal money for destruction of human embryos (which, strangely, is exactly what the statute forbids).
You might quibble that the grant proposer will use stem cells derived from other research (funded by someone else) “in which” an embryo was destroyed. But the plain fact is that (s)he will not destroy any embryos, nor does the work that (s)he will do require that (s)he do so.
The statute doesn’t prohibit the use of product derived from research in which embryos were destroyed (nor does it prohibit the use of knowledge thus derived). You would like it to. Lamberth would apparently like it to. Dickey and Wicker would almost assuredly want it to (but they are not a majority of Congress). TFB, it doesn’t … and it doesn’t on its very terms.
Cheers,
August 26, 2010, 12:03 pmzuch says:
Only if you want to define “research” as “all of biology” on a scientific Six Degrees of Francis Bacon.
Cheers,
August 26, 2010, 12:07 pmzuch says:
“He used plates! He used plates! Burn him!!!!”
Well, yes, once you admit this (and drop the “fruit of the poisonous tree and not just fruit of any old tree” thinking that was not in the statute), you are saying that “research” (by your expansive and ever-expanding definition) is essentially all of biology as a whole (and perhaps eventually all of science).
Cheers,
August 26, 2010, 12:11 pmOrenWithAnE says:
He doesn’t have to apply the definition consistently if that would lead to an absurd result. Instead, he applies the definition inconsistently (at least according to Zuch) but in a manner that gives rise to a rational application of the (plainly irrational) statute.
No, but it’s in the common English understand of the words “in which” to cover the creation of the materials required for the research .
The grant proposal surely doesn’t include autoclaving the glassware, but that is most certainly part of research.
My colleagues downstairs will be very upset to learn that the many (many!) hours they spent purifying protein (i.e. culture, inducing, lysing, spinning) is not research but merely some ancillary activity. It might be necessary to produce the protein on which they conduct research (in the sense that lack of protein necessarily implies lack of research). The equipment, materials and salary might be paid for on a research grant. But zuch insists that preparing the materials on which some experiment will later be conducted is not, alas, research.
What, exactly, it is he won’t tell me. But research it’s not!
For posterity (just in case someone else reads this thread and believes your characterization of my position):
A particular unit of research (usually called an ‘experiment’, of which many experiments constitute a ‘project’, for which funds are sought) encompasses all the activities required require to create, prepare, interrogate and dispose of a particular physical sample.
This definition is not particularly expansive, the experiments starts when you start preparing the sample to be interrogated and ends when you finish cleaning up. It does not cover the creation of every piece of equipment used nor every piece of knowledge brought to bear. It is cabined by direct involvement with the actual sample on which the measurement is performed.
Actually we mostly use microfluidics these days. Saves a ton of sample prep time (which is not research, despite taking up quite a bit of the researcher time!)
August 26, 2010, 12:32 pmAnthony says:
True. However, the language of the statute says ‘is destroyed’, not ‘was destroyed’, which means the destruction must occur during the process of the research, not before. The ‘subject to risk’ and ‘disposal’ clauses do probably protect against future destruction of the embryo, but anything that occurs before the start of research is not protected.
August 26, 2010, 1:05 pmOrenWithAnE says:
I agree. I just think that research starts when you start preparing the sample on which you will conduct the experiment.
August 26, 2010, 1:33 pmAnthony says:
So the chemical supply company from which I buy raw materials is part of my research? They certainly do a fair amount of preparation.
August 26, 2010, 2:03 pmzuch says:
Just making up more sh*te to reach your desired conclusion?
How does “in which” imply, much less require “necessarily depends”?
Lamberth gave a definition of “research”. Read the freakin’ opinion. Then he said that “research” must encompass everything within that very general definition as a unitary whole. If this is not true, then research can be broken into pieces (a “piece of research”), which destroys the aim at which Lamberth wants to attain. If the law allows “research” to consist of a “piece of research”, then any “piece of research” does not have to be “research in which human embryos are destroyed”.
Once you decide that “research” [as used by the statute] comprises everything as a unitary whole, then all of biology must be banned from federal funding.
Not necessarily. If they don’t use that sterilization technique, no. If they reference procedures sufficent to evaluate (and replicate) the research, such methods would be either explicit or by reference. If there is such sterilization, and they need to pay for an autoclave or for the power for such, that’s in what is funded, no?
You’re really getting very silly here….
You miss the point (entirely). Yes, it’s research. It’s all research, according to Lamberth, all part of One Big Research — which is the only way that Lamberth can say that “research” that a group in San Diego is doing on hESC transplantation is the very same “research” that some folks in Lancaster, UK were doing that isolated some stem cell lines and also destroyed some embryos in the process. Lamberth needs to say this, because if this is not true, then the explicit language of the Dickey-Wicker act doesn’t prohibit funding of the San Diego group. Get this clear: It MUST be one and the same “research” — a single unitary body of research not capable of division — or Dickey-Wicker doesn’t apply.
Cheers,
August 26, 2010, 3:32 pmzuch says:
OIC. There is such an entity as a “piece of research”…..
Cheers,
August 26, 2010, 3:35 pmOrenWithAnE says:
What else are they doing? Underwater basket weaving?
He also quite clearly didn’t do any of the absurd parade of horribles you think his decision requires. So why don’t you confine yourself not to the “logic result” of his decision but the actual decision itself?
You keep arguing some far-fetched hypothetical “logical extension” of the ruling instead of the ruling itself.
And purifying protein (and inducing cells, making cultures, plating, autoclaving) is not research according to Zuch.
I think Lamberth has the better of you there.
Yes, it’s called an experiment.
You will note that Lamberth does not endorse Zuchs-logical-extention-of-Lamberth’s-opinion because he does not believe that his opinion entails that ridiculous outcome.
Like I said, this is unproductive to argue unless we are going to argue about what Lamberth’s opinion entails as interpreted by Lamberth.
August 26, 2010, 5:30 pmzuch says:
I didn’t say he was logical or consistent. In fact, I think I intimated rather the opposite. Come to think of it, that was my point….
It may well be. It may be a part of research, nay, even a “piece of research”….
Or a set of experiments. Such as one might propose in an application for grant money….
Now do me a favour and go see what that does to Lamberth’s execrable opinion.
Cheers,
August 26, 2010, 8:14 pmOrenWithAnE says:
Yes, I’m quite aware that your version of his decision is rather illogical. But there are other ways to read his decision, such as his way, that are not so illogical.
He says rather straightforwardly what his decision means. There is really no reason to duplicate his effort and tell him what it means for him.
Nothing at all. An experiment might be discrete but it surely includes sample-prep. Heck, that’s the overwhelming majority of most of the biology experiments these days (5 days in the incubator, 5 minutes in the instrument).
August 26, 2010, 10:33 pmzuch says:
No one asked him if his reasoning would include a prohibition of the funding of all of biology. He probably didn’t think about it. Too bad, because if some one did ask him, and he had to answer honestly, he would have to say yes.
Cheers,
August 27, 2010, 1:05 amzuch says:
See what Lam[zuchberth says about “piece of research”.
Cheers,
August 27, 2010, 1:20 amOrenWithAnE says:
Or he disagrees with your absurd assessment and would answer that it most certainly does not.
You seem to think that anyone who is honest must agree with you. It may shock you to find out that many perfectly honest people have differences of opinion with you, including on the implications of this particular ruling. Let me know when you can fathom that.
August 27, 2010, 11:17 amzuch says:
Perhaps. But it wouldn’t be logical.
He might have to reassess his rationale, and then go with an implicit “taint” that prohibits not just the act but also any “fruit of that poisonous tree” as indirectly contributing to the commission of the prohibited act. This may have been the deepest wishes and the intent of Dickey and Wicker, but that’s a far cry from showing that it was the intent of Congress as a whole. Regardless, that’s a different ‘rationale’ than what Lamberth gave. And if such an “impermissible taint” could be argued as the clear and unequivocal Congressional intent, that still wouldn’t save him from problems … as the intellectual ‘product’ of hESC research (knowledge of growth factors, promoters, repressors, etc.), not to mention any physical substances discovered through such — followed by the ‘results of those results’ in turn, on and on — would inevitably taint all of biology.
What Lamberth gave was a definition of “research” as some big giant enterprise in such a fashion that work by one lab somewhere in Japan is the very same “research” as the work of another lab with different people, using different funds, and performing different experiments. He unarguably uses the CFR and the Random House Dictionary definitions of research to support this view of “research” as defined in the Dickey-Wicker amendment. But he provides no limiting language, nothing from the definitions he quoted, that allow a principled distinction between when two projects are one “research” and when they are two different “researches”.
The crux of Lamberth’s ‘logic’ in defining the scope of any particular “research” in question is this:
Needless to say, Lamberth made this distinction on when “research” is a unitary effort or multiple “piece[s] of research” out of whole cloth. It is not in either the CFR or the Random House definition. What Lamberth is saying is essentially: All “research” necessarily includes the sum total of all previous investigations providing anything (material or non-material, tangible or intangible, physical or intellectual) that is/was “necessary” to the “research” in question; on which that “research” depends. He needs to do this incorporation in order to satisfy the condition that the research be “research in which human embryos are destroyed”. There’s your Six Degrees of Francis Bacon. By insisting on this “necessarily depends” link, he’s saying that all hESC research is one and the same with Crick and Watson’s seminal work; with Darwin’s; with Pasteur’s, etc.
Lamberth thinks that he can just say that because the existence of hESC cell lines (supposedly) require the destruction of an embryo for their derivation, any work using hESCs is the same “research”. But while this one “necessary” precondition may (allegedly) exist, there’s tons of other “necessary” preconditions to this work as well (as in Newton’s “shoulders of giants” comment). My point is that there’s nothing logical in taking just the one precondition to define the scope of any particular “research” and not the rest. If a precondition to getting a grant is getting a professorship, and a precondition to that is passing an oral exam demonstrating proficiency in developmental biology, and demonstrating a proficiency in developmental biology requires that one be conversant on the current state of affairs in stem cell research, the tentacles spread far and wide … as they must, given the expansive definition of “research” that Lamberth must use to achieve his desired result.
August 27, 2010, 12:59 pmzuch says:
I never said they were necessarily dishonest. Illogical (or simply thoughtless) was another possibility.
Cheers,
August 27, 2010, 1:03 pmOrenWithAnE says:
You wrote:
Then you wrote:
There is nothing inherently dishonest in taking a position with which zuch disagrees. He says that his decision only covers a (small but non-zero) subset of biological research. There is nothing dishonest (perhaps it’s wrong, naturally) about this except that you really want to insist that his decision means X when he clearly says it means Y.
There is nothing in the decision that even remotely suggests that intangible, non-physical or intellectual prerequisites are counted as the same piece of research. That is purely your fantasy.
What the decision does say is that you cannot consider the various steps in conducting an experiment as logically independent. Now, it’s a simple fallacy to say that because X cannot be subdivided indefinitely (into arbitrarily small chunks) then therefore it cannot be subdivided at all. Lamberth’s opinion leaves plenty of room to divide up biological research into independent projects and experiments.
You have made a convincing argument against a decision. Unfortunately, Lamberth’s decision and your conception of Lamberth’s decision are wholly at odds. You have not understood what he wrote but rather some bizarre circus-mirror version.
August 27, 2010, 3:33 pm