WASHINGTON–D.C. District Court Chief Judge Royce C. Lamberth issued a preliminary injunction blocking stem-cell research funding on grounds theresearch violates a Congressional order, the Dickey-Wicker Amendment, that prohibits federally-funded research in which human embryos are destroyed. In particular, the court concluded the plaintiffs, which included the Christian Medical Association, “demonstrated a strong likelihood of success that the [National Institutes of Health Guidelines for Human Stem Cell Research promulgated in response to President Obama’s executive order] violate [the Amendment].”
The National Institute of Health had argued the Amendment was ambiguous and therefore the court should defer to the agency’s interpretation of the statute under Chevron U.S.A., Inc., v. Natural Resources Defense. In particular, the Institute argued the term “research” is ambiguous so its interpretation of the term should be entitled to Chevron deference. But the Court rejected that argument because Congress had directly spoken to the issue so the court gave effect to this Congressional intent:
Congress has spoken to the precise question at issue—whether federal funds may be used for research in which an embryo is destroyed. The Dickey-Wicker Amendment provides that no federal funds shall be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under45 C.F.R. § 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).”Pub. L. No. 111-8, § 509(a)(2). Thus, as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on “research in which a human embryo or embryos are destroyed.” Id. Contrary to defendants’ argument, the term “research” as used in the Dickey-Wicker Amendment has only one meaning, i.e., “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d) . . .
Volokh Conspiracy blogger Russell Korobkin argued the court’s interpretation of the Amendment is incorrect on the merits. In particular, he argued the Amendment only bars spending federal dollars on research “in which” embryos are directly destroyed, but does not prevent research involving hESC stem cell lines created by replication of existing stem cells:
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.