The D.C. Circuit today upheld, for the second time in 16 months, President Obama’s Executive Order permitting the National Institutes of Health to fund human embryonic stem cell (hESC) research. The same issue was before the court last year on an appeal of a preliminary injunction that would have halted all federal funding of hESC research. After the Circuit found that the Executive Order was not contrary to law and thus overturned the preliminary injunction, the District Court reluctantly granted summary judgment on the merits of the case for the government. It is the appeal of that ruling that the Circuit decided today. The outcome was somewhat anti-climactic given the four month delay between oral argument and the opinion in a case that had already been decided: all three judges on the panel agreed that the last year’s decision constituted the law of the case and thus reaffirmed that holding.
The most interesting of today’s three separate opinions – one for the court by Judge Sentelle and concurring opinions by Judges Henderson and Rogers – was Henderson’s. Henderson was on last year’s panel (with Judges Ginsburg and Griffith) and she wrote a strongly worded dissent then. She concurred in today’s judgment on the basis of the “law of the case” reasoning, but took the opportunity to again attack last year’s majority opinion. Her legal theory of why the majority was wrong, however, apparently has changed in the last year.
To review briefly, the basis for the challenge the Obama Executive Order is the Dickey-Wicker Amendment, passed by Congress as a rider to appropriations bills every year since 1976, which prohibits federal funding of “research in which a human embryo or human embryos are destroyed, discarded, or knowingly subjected to risk of injury or death….” The plaintiffs in the litigation claimed that this provision prohibits funding of research conducted using hESCs, because the creation of an hESC cell line required the destruction of an embryo at some point in the past. The government, throughout the Clinton, G.W. Bush, and Obama administrations, has thought differently. Specifically, that Dickey-Wickey only prohibits funding of embryo destruction. Last year’s D.C. Circuit majority applied the Chevron test, which requires courts to defer to agency interpretations if they are permissible constructions of an ambiguous statute, and upheld the NIH/Department of Health and Human Services interpretation of Dickey-Wicker on this basis.
Last year, Judge Henderson would have also applied the Chevron test but not deferred to the agency because she believed the plain language of the Dickey-Wicker clearly prohibited the funding of any hESC research, even when no embryos were directly involved. Today, Henderson claimed that the Chevron test should not even apply in this case because authority to implement the Dickey-Wicker Amendment was neither granted to the agency by statute nor does the agency have expertise in this particular area. Thus, she now thinks that last years’s court should have ignored the agency altogether and interpreted even an ambiguous statute de novo. Since she continues to believe the statute is plain and unambiguous on its face, however, this change of legal theories has no impact on her ultimate conclusion concerning last year’s decision, so it is a bit odd that she has bothered to articulate a new reasoning (and done so without even admitting in today’s opinion that she has changed her theory, by the way). Perhaps she thinks the new theory, which would permit the Supreme Court to overturn the D.C. Circuit even if the judges find the statute ambiguous, will improve the chances of the Supreme Court granting cert. Stay tuned.
My opinion was, and continues to be, that whether or not Chevron applies is irrelevant, because it is clear that that Dickey-Wicker does not prohibit funding of hESC research. The interpretive issue is how broadly to read the term “research.” Henderson says that research is an entire sequence of investigation, not just a single project, so if a particular project relies on an input (hESCs) that was created via the destruction of an embryo, that project constitutes “research in which” an embryo is destroyed. To me, the critical fact is that the Dickey-Wicker Amendment is an appropriations rule. When Congress speaks about what research funding it will support, this context clearly suggests that the word “research” means the work for which the applicant is requesting government funding. That is, if I apply to the funding source for a research grant, the “research” in question is the work I want the money to do, not research that someone else did in the past, even if it makes my research possible. To me, this is the end of the inquiry. As long as the grantee is not going to use the government funding to destroy embryos and create hESC lines from them, the grant is permissible. But if any doubt remains, it seems completely removed by the fact that Congress enacted the same Dickey-Wicker language each year throughout the Bush presidency, with full knowledge that the Bush administration was interpreting the law as not prohibiting funding of hESC research.
Going back to last year’s decision, Henderson’s primary argument for her preferred interpretation is that Dickey- Wicker prohibits funding of the “creation of human embryos,” but instead of prohibiting, in parallel fashion, funding of the “destruction of human embryos,” it prohibits “research in which” embryos are destroyed. Henderson argues that the difference in construction between these two parts of the statute suggest that the part dealing with embryo destruction must be meant to be broader than the part dealing with embryo creation. I think this is wrong. The more obvious reason for using different gramattical construction is that, while the government could conceivably wish to fund research with primary purpose of creating embryos, it is not likely to wish to fund reserach with the primary purpose of destroying them. It most likely used different constructions for the two prohibitions to make clear it was not just banning funding of research that has the goal of destroying embryos, but research with other goals that destroys embryos in the process.