Rare Sighting: Common Sense from the Bench

Paul Greenberg

What's this? A federal judge has cited not only chapter and verse, section and clause, of the law when it comes to experimenting on human embryos, but common sense. How unusual.

But that's what His Honor Royce Lamberth did in the course of issuing a preliminary injunction against the federal government's funding research that involves using stem cells derived from human embryos.

The law the judge specifically cited was the Dickey-Wicker Amendment, which prohibits using federal funds for "research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death...."

Naturally there's always some (too) sharp lawyer who can ignore the whole point of a law in the course of ferreting out what's not in it. In this case, it was one working for the Department of Health and, yes, Human Services during the Clinton administration. She'd concluded that the prohibition on destroying human embryos to obtain stem cells didn't forbid experimenting on the stem cells themselves. Or even procuring them. After all, the stem cells are only derived from human embryos; they aren't entire embryos. And so are fair game.

Did you follow all that? The shorthand for it is "law logic," a term John Quincy Adams used when he recounted a conversation he'd had with John Marshall, the great chief justice of the early Supreme Court whose opinions have yet to be matched for breadth, reason and foresight. "I told him," Mr. Adams confided to his diary, that "it was law logic -- an artificial system of reasoning, exclusively used in courts of justice, but good for nothing anywhere else."

To follow the line of reasoning being used by this administration to its logical if ghastly conclusion, it should also be permissible, even if the law prohibits vivisecting human beings, to use the body parts obtained that way for scientific research.

To reach a different conclusion would require a modicum of that most uncommon quality in the law: common sense.

By now a simple observation that has become a legal principle: The fruit of a poisonous tree is also poisoned. All that the judge in this case has done is to conclude, sensibly enough, that the law which bars government from experimenting with human embryos also keeps it from doing as it wills with parts thereof, like stem cells. They're an inseparable part of the same, prohibited practice. This is much the same rationale that the courts have used to defend the Fourth Amendment, which bars unreasonable searches and seizures. They've ruled that the evidence gathered by such tactics is inadmissible in court. For it is tainted, too.

The cries of protest against Judge Lamberth's ruling were loudest from the only sure beneficiaries to date of all this research on embryonic stem cells: the scientists who have been getting federal grants to pursue it. Because despite all their wild promises -- a cure for Alzheimer's! for diabetes!, for paralysis! for you-name-it! -- they have yet to come up with a single such cure. (So far embryonic stem cells, because of their tendency to metastasize, have caused more cancers than they've cured.)

As usual, a key piece of information may be relegated to an afterthought in the news coverage of this furious debate. The buried lede, it's called in the parlance of the trade. This one didn't show up till about the 21st paragraph of one story: "Embryonic stem cells, which can morph into many different types of tissues, are able to do things that other cells cannot, proponents argued. No new therapies, however, have been developed." The emphasis is mine.

Meanwhile, research using other kinds of stem cells, like adult stem cells, has proven remarkably fruitful, resulting in scores of medical advances. Federal funds for that kind of productive research is inevitably reduced when millions of the public's dollars are used to pursue the will-o'-the-wisp that is the promise of research on human embryonic stem cells. Just as the plaintiffs in this case before Judge Lamberth argued.

What's more, scientific advances are rapidly making this whole dispute superfluous. For ways are being found to produce stem cells that have all the qualities of embryonic stem cells without raising any of the scientific, legal or ethical questions that surround their use for research purposes.

Yet some researchers -- and the politicians they've recruited -- still insist that only experiments on the embryonic kind of stem cells will do. Those of us who oppose the use of embryonic stem cells for research purposes aren't opposed to science, just this less-than-scientific obsession of some scientists. There are ideas and there are ideologies, and it seems scientists are as prone as the rest of us to confuse the two.

The Obama administration may now appeal this latest decision against the use of human embryos for scientific research. It may even prevail, given the confused state of the law. Or it may try to change the law itself in order to lessen the protections afforded the embryo, leading to more years of confusion and contention in this conflict between reverence for human life and man's impulse to cross the boundaries erected to protect it.

It will be argued that, at this stage, the human embryo is but a speck. Why all this fuss over a bit of microscopic protoplasm no bigger than the period at the end of this sentence?

That human life -- every human life -- begins on such a minute scale tempts us to dismiss any reservations about destroying it; instead, that fact should fill us with awe.

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Rare Sighting: Common Sense from the Bench