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Dr James L. Sherley et al. v. Kathleen Sebelius et al.

Judge Royce Lamberth writes:

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.

Lamberth makes here a completely illogical, and frankly pretty stupid distinction between a "piece of research" and "research" in this injunction. Research is an ongoing, continual process, almost synonymous with "scholarship," so unless he means to ban all research that builds upon materials and data acquired via embryonic stem cell research (which includes induced pluripotent cell research, adult stem cell research, cancer work, as well as fundamental biochemistry and cell biology work, etc., all of which build upon or cite research done on embryonic stem cell research), then there must be some sort of scope by which one can limit the effects of this guideline. Otherwise, even just citing previous embryonic stem cell research could be construed as grounds for withholding federal research funds.

Consider the same logic from the injunction as applied to HeLa cell research. In 1951, the scientist George Otto Gey and a physician Dr. Laurence Wharton, Jr. harvested cervical cancer cells from a dying woman, Henrietta Lacks, without her knowledge and without her consent (nor those of her family). The way HeLa cells were harvested would not pass ethical guidelines today, and yet probably half of all modern cellular and molecular biologists in the world use them every day for groundbreaking research. This cell line has been handed down in a continuous chain of citations, collaborations, and continuing research, all interrelated in some way. Does this mean federal funds should be withheld from HeLa cell research for a transgression more than 50 years in the past?

The NIH has naturally decided that since there must be a limiting scope for implementing this law, that it is their prerogative (under Chevron U.S.A., Inc., v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 843 (1984)) to decide how one might decide which research to restrict and which research to allow---in this case, by determining the ethics of discrete projects and actions with discrete scope. This is how all ethical reviews are done in science.