As I point out in The Case for Life, the U.S. government began its own quest to fund embryo research in August of 1993. At that time, the National Institutes for Health (NIH), under direction from then President Clinton, requested panel discussions for the purpose of issuing ethically and legally appropriate guidelines for the controversial research.
In a bizarre twist of logic, the panel concluded that embryos are entitled to “profound respect, but this does not necessarily encompass the legal and moral rights attributed to persons.” Translation: We should respect human embryos, but we may kill them to benefit others. To hedge its incoherent position, the NIH panel condemned human cloning techniques like those eventually legalized in Britain and proposed instead that destructive harvesting of stem cells be limited to so-called “spare embryos” leftover from fertility clinics (or, as the NIH euphemistically called them, “embryos in excess of clinical need”). Daniel Callahan of the Hastings Institute writes, “I have always felt a nagging uneasiness at trying to rationalize killing something for which I have profound respect.”
In response to the panel’s convoluted logic, Congress outlawed federal funding for harmful embryo research in 1996. The ban, known as the Dickey Amendment, was broad based and specific: Funds could not be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.” The intent of Congress is clear: If a research project requires the destruction of human embryos, then it is illegal to use federal funds for the project.
In clear defiance of the law, the Clinton Administration, working through the National Institutes of Health (NIH), authorized federal funds for destructive research on leftover embryos. The NIH argued that public funds would not be used to destroy the embryos, only to conduct research after the embryos are killed. This reasoning here was baffling. The deliberate killing of a human embryo is an essential component of the proposed federal research. “If we had a law that barred research in which porpoises were killed, no one would entertain for five seconds that a federal agency could arrange for someone else to kill the porpoises and then proceed to use them in research,” writes Douglas Johnson, Legislative Director for the National Right to Life. Clearly, the NIH’s determination to pursue human embryo research showed contempt for, and defiance of, the legislative will of the U.S. Congress.
Clinton, however, never got around to implementing his policy on stem cells taken from human embryos. Thus, when George W. Bush took office in 2001, he inherited both a no-funding policy and a proposal to allow funding. After taking several months to converse with experts on both sides of the funding issue, Bush announced his decision in a televised address to the nation on August 9, 2001. Contrary to popular belief, President Bush did not ban ESCR. In fact, he funded it, but only on stem cells taken from embryos killed before his August 9 speech. If researchers wanted to destroy more human embryos for research they could do so, but not with federal dollars. In short, the Bush policy neither bans nor funds the destruction of human embryos for medical research.
Fast Foward to March of 2009. President Obama announces new guidelines essentially putting in place the Clinton policy of using private money to kill the embryos, but public funds to experiment on them after the killing.
Judge Lamberth didn't buy it. In his ruling last week, he upheld the Dickey Amendment, arguing that it makess no sense to claim that the act of destruction can be separate and distinct from the act of research. That is, ESCR is clearly research that involves killing a living human embryo and that act cannot be split off from the subsequent research that follows. The act of killing is integral to the act of research in this case. Thus, federal funding of ESCR violates the Dickey Amendment.
For all we know, Judge Lamberth supports the federal funding of ESCR. But he's right: His duty is to uphold the law and if the President's embryo destroying allies want federal funds for their craft, they'll need to repeal the Dickey Amendment.
Will Congress do it? Probably not, given the curent public disdain for Democrats. Instead, they'll do what liberals always do: find a judge who will let them do what the law of the land says they can't do. So much easier that way.
UPDATE: Bob Perry has a detailed ESCR policy timeline here.