In an oft-quoted metaphor, political scientist James Q. Wilson has likened the American policymaking process to a bar-room brawl:

“… anybody can join in, the combatants fight all comers and sometimes change sides, no referee is in charge, and the fights last not for a fixed number of rounds but indefinitely or until everybody drops from exhaustion.”[1]

This metaphor is an apt description of the country’s attempt to deal with the question of human embryonic stem cell (hESC) research. Over the last 20 years, hESC research has been regularly debated in Congress, state legislatures, political campaigns, public referenda and the courts. While there have been local victories for both advocates and detractors of this research, the stem cell policy debate is nowhere close to being over, or even partially settled.

The most recent solid punch in this ongoing policy brawl has landed in federal court over the interpretation of the Dickey-Wicker “amendment.” Dickey-Wicker was originally passed in 1996 as a rider to the appropriations bill for the Department of Health and Human Services (HHS) and has been attached to every HHS appropriation since then. This amendment prohibits HHS from funding “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.”

The meaning of this amendment had been viewed as more or less settled. Human embryonic stem cells were first isolated, and hESC research became a real possibility, in 1998. Clinton administration lawyers opined that Dickey-Wicker prohibited federal funds from being used to create embryonic stem cell lines, since that process destroys the embryo, but not from being used to support research on those stem cell lines, once created with state or private funding.

For the next 11 years, both proponents and opponents of hESC research assumed this constituted the more or less settled meaning of Dickey-Wicker. While the Bush and Obama administrations differed on stem cell policy in some important respects, one of the things they agreed on was the meaning of Dickey-Wicker: Both adopted the Clinton administration’s reading and issued executive orders directing HHS to fund hESC research accordingly. (For more on these similarities and differences, see our article in the Kennedy Institute of Ethics Journal.) While HHS funded research on hESC lines, each year Congress passed budgets containing HHS appropriations without ever rewriting Dickey-Wicker to prohibit HHS from funding research on hESC lines. Twice, Congress even passed legislation to expand HHS funding of hESC research, though those expansions were vetoed by President Bush.

Thus it was something of a surprise when, in 2009, a federal district court granted two scientists who work on adult stem cells a preliminary injunction against the National Institutes of Health (NIH) to prohibit it from funding research on hESC lines. The scientists’ winning argument? Such funding violates the “plain meaning” of Dickey-Wicker. Courts are obliged to defer to an agency’s reasonable interpretation of an ambiguous statute. But agencies are obliged to defer to Congress when its meaning is unambiguous. Federal District Judge Royce Lamberth held that Dickey-Wicker is indeed unambiguous, and that — contrary to the readings it has been given by three presidential administrations and several Congresses — it unambiguously prohibits federal funding of both research that is per se embryo-destroying (such as the derivation of hESC lines) and research that could not be conducted without an embryo having been destroyed at some point (such as research that uses previously derived hESC lines), no matter how long ago the destruction took place, or with whose funds. According to Judge Lamberth, NIH’s interpretation of Dickey-Wicker rests on an artificial distinction between the embryo-destroying “piece of research” that creates a stem cell line and the subsequent “research” on that line. Both are part of the same stream of research, he said, and for HHS to fund either violates the “plain language” of Dickey-Wicker.

NIH appealed to the U.S. Court of Appeals for the D.C. Circuit, and a three-judge panel of that court temporarily stayed the injunction, allowing NIH to fund research while the court considered the appeal. In April 2011, a different panel of the D.C. Circuit, in a 2-1 opinion, vacated the preliminary injunction. The panel’s majority held that the plaintiff scientists were unlikely to prevail “on the merits” of their argument. Unlike the district court, the D.C. Court of Appeals found that Dickey-Wicker was ambiguous. In referring to “research,” Dickey-Wicker might mean, as the plaintiffs and Judge Lamberth believe, a lengthy stream of scientific work, conducted by many scientists, whose work is supported over the years by many sources of funding. But the Appeals Court panel held as equally plausible NIH’s interpretation that, when Dickey-Wicker forbids HHS from funding certain “research,” it means the discrete research project described in a particular scientist’s grant application. The appellate court’s decision sent the case back to Judge Lamberth for a ruling on the merits, which he issued on July 27. Although the panel majority’s finding that the plaintiffs were not likely to win on the merits of their Dickey-Wicker argument did not itself constitute a decision on those merits, the panel sent a loud message to Judge Lamberth about how it would almost certainly interpret Dickey-Wicker, should it ever be asked to do so. As a result, Judge Lamberth reluctantly ruled for NIH with respect to that argument.

He also ruled for NIH with respect to two additional arguments. First, the plaintiffs had argued that NIH’s funding policy violates Dickey-Wicker’s second prong, which prohibits funding any “research in which a human embryo or embryos are … subjected to risk of injury or death.” According to the plaintiffs, HHS funding of research on hESC lines creates an incentive for researchers to create such lines, which, in turn, puts embryos at risk since deriving a stem cell line requires destroying the embryo. In rejecting this argument, Judge Lamberth explained that Dickey-Wicker prohibits only research in which, not researchbecause of which, embryos are placed at risk. Finally, the plaintiffs claimed that NIH violated federal law by ignoring many public comments it received before formally adopting its hESC regulations. Judge Lamberth held that NIH merely obeyed President Obama’s executive order to expand hESC research; the comments urging HHS not to do so were irrelevant.

In the stem-cell bar-room brawl, the decisions by the Court of Appeals and by Judge Lamberth qualify as a solid punch thrown by hESC advocates, but not a knockout. Our best guess is that the plaintiffs will appeal Judge Lamberth’s decision to the D.C. Circuit, where the same three-judge panel that vacated the preliminary injunction will likely hear the appeal, and the same two-judge majority of that panel will likely uphold Judge Lamberth’s dismissal. It’s certainly possible that another randomly drawn D.C. Circuit panel — or the same panel, addressing one of the plaintiffs’ other claims — could decide that NIH misread Congress’ words. That’s clearly what both Judge Lamberth and at least one member of the D.C. Circuit believe. But we think these scenarios are unlikely.

If we’re right, then the plaintiffs’ remaining options would be to petition the D.C. Circuit for a hearing before all nine of its active judges and/or to petition the U.S. Supreme Court to hear the case. We expect that both courts would reject these petitions. Both types of petitions are granted rarely — usually, only when necessary to resolve substantial disagreement between courts or an issue of exceptional importance. No split of opinion among circuit courts exists on these issues, and there is no indication that the D.C. Circuit panel’s decision is inconsistent with any of that court’s prior decisions. While the question whether to federally fund hESC research is exceptionally important, to people on both sides of the debate, answering this policy question does not require the courts to resolve any exceptionally important legal question. The U.S. Supreme Court has already decided the broad legal question of when courts should overrule administrative agencies’ reading of statutes.

While the judicial process may take a while to play out, the likely outcome is that NIH’s stem cell policy will be upheld.

What also seems likely, however, is that hESC research detractors will continue to look for and press legal and political challenges to continued federal funding. Certainly, a permanent court ruling that federal funding of hESC research is illegal would constitute a knockout for them. But even without a knockout, simply prolonging the uncertain legal status of federally funded hESC research may itself be a worthwhile pursuit, from their perspective. Embryonic stem cell research opponents may hope that, against this background of legal uncertainty, researchers divert their intellectual and financial investments to other projects, or to labs abroad. While Congress could also act to clarify the ambiguity in Dickey-Wicker, this seems highly unlikely given the current partisan split between the House and the Senate. Meanwhile, most of the leading Republican candidates for President are calling for a return to the more restrictive Bush administration approach in this area, heightening uncertainty about future federal policy.

If detractors are successful in creating ambiguity over the legal status of federal funding for hESC research, this will make continued state and private funding for this research even more important to advocates. Score the latest legal round for hESC advocates. But in the current economy, the battle to maintain significant funding from multiple sources may be even tougher than a bar-room brawl.