Court Ruling Against Obama Order On Stem Cells Dings Bush Policy Too

Human embryonic stem cells

Uncertainty hangs over the future of federal funding for research on human embryonic stem cells like these. Nissim Benvenisty/PLoS Biology hide caption

toggle caption Nissim Benvenisty/PLoS Biology

Monday's court ruling temporarily halting federal funding of embryonic stem cell research is still reverberating in Washington and in research laboratories around the country.

But the ruling by U.S. District Judge Royce Lamberth does make one thing clear: If President Obama's stem cell policy is impermissible, then so was President George W. Bush's.

That's because the ruling actually turns on a memo originally written during the Clinton administration. The so-called "Rabb memo," written in 1999 by then-Health and Human Services Department General Counsel Harriet Rabb, was used by then-National Institutes of Health Director Harold Varmus to justify federal funding of embryonic stem cell research as long as no embryos were actually destroyed using federal money.

The Clinton administration never got around to paying for any of that research. But the Bush administration did, albeit in very limited quantities. And, according to the court's ruling yesterday, even that limited funding violated federal law that prohibits research funding that is destructive to human embryos.

"It's somewhat stark, but that is correct," Louis Guenin, a ethicist at Harvard Medical School, tell Shots. "The law prohibits it."  He's a supporter of embryonic stem cell research, but he warned the Obama administration's transition team in a memo shortly after the election that it could not permit embryonic stem cell funding by executive order; that Congress would have to act.

And now Congress just might. House leaders are already planning possible action on legislation when lawmakers return after Labor Day.

Update: The Justice Department plans to appeal the decision blocking embryonic stem cell funding, the Associated Press reported late Tuesday.

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