• ”Denial ain’t just a river in Egypt”

Posted January 19, 2012

”Denial ain’t just a river in Egypt”
- Mark Twain

The U.S. Court of Appeals for the District of Columbia Circuit announced that it will hear oral arguments in April, in the case of Sherley et. al. v. Sebelius. This was the case, originally filed in 2009, by two adult stem cell scientists who tried to stop the Federal Government from funding any embryonic stem cell research. Their argument was based upon a broad reading of the 1996 Dickey-Wicker Amendment that, they claimed, banned the use of any federal funds for such research. Ultimately, the District Court (lower court) ruled that Dickey-Wicker did not ban the funding; the plaintiffs appealed, and this spring that appeal will be heard.

Interpreting the intent of Congress in any legislation is an odd exercise. One would think that plain language in the law might make the intent clear. So argued the plaintiffs in this case. The problem arises when there are multiple layers of intent: when that very same, and/or a later, Congress passes laws that are contrary to the old law, or when Congress signs into law funding for the very thing it banned (all of which happened here).

The reasoning of the Lower Court in this case was that Congress’s intent couldn’t have been to ban all research using embryonic stem cells since the Congress funded exactly that type of research in multiple appropriations bills. They did so in both Democratic- and Republican-controlled Legislative sessions -- including the same Congress that passed the Dickey-Wicker Amendment. Talk about being in denial. The legal reasoning concluded that only research actually destroying embryos in the creation of the stem cell lines couldn’t be funded, not the consequent research done with those pre-existing cell lines.

Nearly a decade after Dickey-Wicker, the second President Bush used similar logic in announcing his great “compromise,” allowing the research at NIH on a limited number of cell lines created without government funding. That the Court in 2011 mirrored this analysis reflected a reasoned and practical approach. That the Appeals Court will again mirror this approach is a pretty sure thing.

Although Court decisions in an election year are never easy to predict.