(Corrects court location and title of Janice Rogers Brown in ninth paragraph of column published Aug. 27.)
Aug. 27 (Bloomberg) -- If Ronald Reagan were alive today, he would see the fruits of the legal revolution he ignited in this week’s stunning court-ordered halt of new embryonic stem cell research.
And surely former President George W. Bush, whose appointees are pushing the law further rightward, is giving himself high fives.
In a 15-page ruling this week, a Reagan appointee stopped new research that uses cells from discarded embryos, at least for now. The order suspends one of the most promising areas of scientific effort aimed at treating, perhaps curing, an array of debilitating and deadly conditions.
U.S. District Court Judge Royce Lamberth said that using cells available only through the destruction of embryos violates a congressional mandate.
If you’re tempted to accuse Lamberth of right-wing, results-oriented judging, don’t. His decision offers a reasonable interpretation of a provision Congress passed in 1996 and renews annually.
If he were only invoking the law as a cover for a personal, moral aversion to using embryonic cells, he wouldn’t have tried to throw the case out of court last year. But last October, Lamberth ordered the case dismissed because the plaintiffs, a bunch of religious and ideologically driven groups and individuals, plus the embryos themselves (you read that right), had no legal standing to sue.
Lamberth, a conservative, nonetheless ruled none of them had legitimate grounds to challenge the Obama administration’s relaxed regulations, especially not embryos, who aren’t people under the law. That should have ended the case.
But two of the plaintiffs appealed and had the good fortune to find themselves before a three-judge panel made up of another Reagan appointee, Douglas Ginsburg, and two of Bush’s most ideological nominees to the federal bench, Janice Rogers Brown and Brett Kavanaugh.
Democrats blocked both of them from the federal bench for years. They cited remarks and rulings from Brown, then a on the California Supreme Court, to say she was pursuing a political agenda, not loyalty to the law. And Kavanaugh had been a political lawyer as an assistant to Ken Starr in the Whitewater-and-Whatever investigation and a top legal adviser to Bush when White House positions on presidential secrecy and terrorism-related matters veered dangerously off legal course.
A truce brokered by moderates finally let those two go to a vote in the Senate, which confirmed them to the appeals court in Washington.
Led by the more moderate Ginsburg, the trio reversed Lamberth in June, contorting the law on legal standing and abandoning common sense. The judges said two researchers who use stem cells from adults will serve just fine for plaintiffs.
The two scientists claim that when President Barack Obama eased Bush’s restrictions on embryonic stem cell research, he invited more competition from researchers vying for the sort of federal grants they were seeking.
This makes them eligible to sue, the court said, under the “competitor standing doctrine,” which favors plaintiffs who say their business was hurt because a wrongful action generated more competition.
That the appellate panel applied the concept to this case is remarkable, given how speculative is the researchers’ claim that they would almost surely get federal money if it weren’t for Obama’s expanded program for studying embryonic cells.
At any rate, the panel in June breathed life back into the case Lamberth had tried to kill last October.
It was only then, when the litigation showed up on his desk again, that Lamberth moved onto the next issue: whether to grant a temporary injunction until both sides can lay out their arguments in greater detail.
The central issue is a provision Congress has attached annually to a budget bill since 1996. It says no federal funds can be used for research that causes the destruction of an embryo.
Lamberth found that language clear. He said the plaintiffs stand a good chance of prevailing on the merits, so he granted the temporary injunction.
He didn’t buy the argument that the embryos, which come from fertility clinics, were already going to be destroyed, so the research wasn’t responsible for that.
In Vitro Fertilization
The embryos, from people trying to conceive through in-vitro fertilization, are no longer wanted by the donors. They can choose to have them discarded, made available to adoptive parents or donated for research.
While the congressional ban forbids using government money to destroy the embryos, Obama’s regulations permit scientists to use the cells resulting from privately funded destruction.
Congress has twice passed bills that would have allowed for embryonic stem cell research under certain conditions, and twice Bush vetoed them. The legislation hasn’t been put to a vote since Obama took office, in large part because he seemed to get around the restriction with an executive order and an artful legal interpretation of the 1996 provision.
It just might be put to a vote now.
In the meantime, the halt to this vital research offers yet another victory for the conservative legal movement. Reagan and Bush were especially diligent in naming young, ideological conservatives to the bench.
This week’s ruling also offers proof that a president intent on altering the course of the law, as Bush and Reagan were, can turn courts into transmitters of his ideology and his policies long after his presidency ends.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
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