Wednesday, August 25, 2010

"I was stunned": Collins doing his best Captain Renault?

Mary Brophy Marcus in a USAToday article titled NIH scientists 'stunned' by judge's stem cell ruling tries to convey the message that Judge Lamberth's decision in Sherley v. Sebelius was an unexpected shocker:

"I was stunned, as was virtually everyone here at NIH," agency director Francis Collins said.

In a story filled with quotes by shocked scientists, Marcus's only attempt to discuss the ruling itself was in a single sentence:

The ruling by U.S. District Court Judge Royce Lamberth blocked Obama's executive stem cell order, saying it conflicted with a ban on using federal money to destroy embryos.

In fact, what happened in the ruling was quite foreseeable, and no one should have been stunned. Go backwards in time
to an article in the New York Times by SHERYL GAY STOLBERG in March 2009, titled: Obama Is Leaving Some Stem Cell Issues to Congress which included the text:

The ban, known as the Dickey-Wicker amendment, first became law in 1996, and has been renewed by Congress every year since. It specifically bans the use of tax dollars to create human embryos — a practice that is routine in private fertility clinics — or for research in which embryos are destroyed, discarded or knowingly subjected to risk of injury.

Keep in mind, the ban is on the use of "tax dollars" to support the act; it is not a ban on the act or on research on the act.
People can create or destroy embryos, and people can perform research thereon.

As to current expressions of shock, which should carry no more weight than that of Captain Renault in Casablanca, note well the text from the March 2009 article in the New York Times:

Mr. Obama has no power to overturn the Dickey-Wicker ban. Only Congress, which attaches the ban to appropriations bills, can overturn it. Mr. Obama has not taken a position on the ban and does not intend to, Melody C. Barnes, his chief domestic policy adviser, said Sunday. The president believes stem cell research “should be done in compliance with federal law,” she said, adding that Mr. Obama recognizes the divisiveness of the issue. “We are committed to pursuing stem cell research quite responsibly but we recognize there are a range of beliefs on this,” she said.

Obama punted, sort of, in 2009. Lamberth could not punt in 2010; he had to decide. Lamberth wrote in the decision:

This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece
of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey-
Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation
of ESCs, or to research on the embryo itself, Congress could have written the statute that way.
Congress, however, has not written the statute that way, and this Court is bound to apply the law
as it is written. Accordingly, this Court must “give effect to the unambiguously expressed intent
of Congress” to prohibit federal funding of research in which a human embryo is destroyed.
Chevron, 467 U.S. at 843.

The defendants attempt to assert that the word "research" was ambiguous was about as convincing as Clinton parsing the meaning of the word "is." The ball is now with Congress. If Congress says "it's ok," there is nothing Lamberth can do to change the will of Congress. If Congress does nothing, they have effectively spoken.

Mary Brophy Marcus wrote fluff instead of defining the issue.

See also

The meaning of research


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