Vail Law: What the court decided about stem cell research

First things first – what is a stem cell?

Stated simply, it is a “master cell” with the ability to grow into any one of the body’s more than 200 types of specialized cells. A stem cell is not yet specialized, and can, if properly prompted, give rise to specialized cells and replace or reinforce cells that are damaged or have died.

As such, stem cells are essential in the body’s ability to renew and repair. Unlike mature cells whose fate is cast, these immature cells have yet to receive the body’s marching orders and can both renew themselves and create new cells in whatever capacity they are directed. They hold out great promise in the treatment – and perhaps cure – of a variety of diseases including Parkinson’s disease, diabetes, and multiple sclerosis.

But here’s the rub: While stem cells can be adult or embryonic, embryonic stems are the undisputed champs, and can morph into any cell type desired. Adult stem cells are less flexible.

And, of course, the source of embryonic stem cells is embryos themselves. Thus, the use of embryonic stem cells – and the research derived therefrom – has ignited a debate that resonates with echoes of pro-life versus pro choice. There are, to be sure, other considerations as well, many deriving from the “playing God” hypothesis and others from the Dr. Frankenstein model.

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Believe what you will, but there has been a recent legal sea change in how the law treats these cells and the research into them.

Here’s what happened

Last year, President Obama signed an executive order clearing the way for expanded federal funding of stem cell research. In so doing, Obama lifted the strict limits on funding that President George W. Bush had imposed eight years earlier. In effect, by presidential fiat, the ban was lifted on federal funding for promising embryonic stem cell research. Some celebrated. Others were less than happy campers, some of whom vowed action to restore the status quo.

In reliance on the new playbook, the National Institutes of Health set about drafting appropriate guidelines to spell out what would henceforth constitute “responsible” research on embryonic stem cells (and, therefore, be eligible for federal funding).

Rather than a sticky wicket, however, what the President had to contend with was the Dickey-Wicker – the Dickey-Wicker Amendment, to be precise.

Named for its sponsors, Rep. Jay Dickey (R-Arkansas) and Sen. Roger Wicker (R- Mississippi), the amendment was passed by Congress in 1995 and signed into law by President Clinton.

The rule prohibits the Department of Health and Human Services from using appropriated funds for the creation of human embryos for research purposes or for research in which human embryos are destroyed.

The work-around

The National Institutes of Health tried to do an end-run around the rule by asserting that the government would pay not for the extraction of the stem cells (which destroys the embryo and which would, thereby, run afoul of Dickey-Wicker), but only for the subsequent research.

Conservatives took exception to that position and suit was brought by two researchers.

Chief Judge Royce C. Lamberth of the Federal District Court for the District of Columbia was sufficiently persuaded by the plaintiffs’ claims to impose a temporary injunction, blocking the new rules from going into effect. The Justice Department said it would ask for the injunction to be lifted, pending its appeal. Judge Lamberth concluded that that the lawsuit filed by the researchers is likely to succeed as it moves through the courts.

While the ruling throws the world of stem cell research into at least temporary upheaval, the judge’s ruling is preliminary and could well be reversed by the courts in further proceedings. Another fix rests with the possibility that Congress could simply restore the research funding by repealing or amending Dickey-Wicker.

As this election season blossoms into full bloom, the culture wars will be full-throated in support or opposition. It will be interesting, to say the least, how it all eventually shakes out.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his e-mail address: robbins@colorado.net

Editor’s Note: In addition to his law degree, Mr. Robbins earned one of his three bachelor degrees in biology (genetics) and spent several years in graduate research and study in the areas of genetics and human physiology.