Difficult appeal

The Obama administration will ask the U.S. Court of Appeals for the District of Columbia Circuit to lift the preliminary injunction issued Monday on federally funded embryonic stem cell research, the Justice Department announced late Tuesday.

Dr. David Stevens, chief executive of the Christian Medical & Dental Associations, believes the government will have a hard time winning in court because the judge who issued the injunction has already shown how the Obama administration "tried to do verbal engineering" around the 1996 Dickey-Wicker Amendment (see sidebar below) that prohibited federal funding for research on destroyed human embryos. Stevens was one of the original plaintiffs in the case that led to the injunction.

U.S. District Judge Royce Lamberth's ruling Monday suggested that the administrations of Presidents Clinton, Bush, and Obama all wrongly assumed that because taxpayer dollars never funded actual human embryo destruction (the destruction was done through private means) but rather funded research on the resulting stem cell lines, they were in technical compliance with the law. Bush's executive order allowed research on 21 lines created prior to 2001 but banned research on newly destroyed embryos. In his first two months in office, Obama lifted the restrictions altogether and has funded research on 75 lines so far.

Lamberth recognized that the destruction of embryos is an integral step of embryonic stem cell research. Anna Franzonello, an attorney for Americans United for Life, said that's a key issue for pro-lifers: Although the government does not fund directly the destruction of human embryos, it creates an obvious incentive for other parties to do so. Without the destruction, there are no stem cell lines for research.

It is also possible that the White House could ask Congress to revoke or rescind the Dickey-Wicker Amendment, which is attached to the Department of Health and Human Services budget and has been approved annually since 1996. Congress may wait until the budget comes up for approval again or take special action to override the amendment in a separate law.

Stevens believes the mainly Democratic supporters of embryonic stem cell research will not want to raise the issue before November's midterm elections and may not be able to pass any provisions after new lawmakers are sworn in next January, making it likely they will settle it during the lame-duck session between the election and the seating of a new Congress.

The White House has a third option: Rewrite the guidelines to fit the law. Stevens believes this is very difficult given the nature of embryonic stem cell research and the fact that even the Bush administration's stem cell policy could be in violation of the law. The Associated Press contributed to this report.

Chronology: From Dickey-Wicker to Lamberth's ruling