The recent decision in Sherley v. Sebelius—the stem-cell case—turns to a great extent on questions of textual interpretation. And the dissent in particular discusses those questions at length, and gets just about everything wrong. This is the first in what will be a series of posts discussing the textual issues and pointing out some of what I consider to be the dissent’s errors.
Two things before we begin. First, a disclosure: I represent the Genetics Policy Institute as one of the amici on the government’s side in this case, and portions of these posts will be adapted from my amicus brief. Second, a point about terminology. Although the Sherley case is often referred to as dealing simply with “stem-cell research,” it actually deals with research involving human embryonic stem-cells. (hESCs). There are other types of stem cells for which research funding is not restricted. (For general background on stem cells, you can start here or here.)
Let’s start, naturally, with the statute. The Dickey-Wicker Amendment has appeared as a rider to annual appropriations bills for the Department of Health and Human Services every year since 1995. It provides:
None of the funds made available in this Act may be used for—
(1) the creation of a human embryo or embryos for research purposes; or
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 CFR 46.208(a)(2) and Section 498(b) of the Public Health Service Act…
(In granting the preliminary injunction, the district-court had relied only on subsection (1), so that was the only provision that the court of appeals discussed. Subsection (2) remains open for the district court to deal with when it gets the case back.)
A central point in both the plaintiff’s argument and the district court’s ruling was that the Dickey-Wicker Amendment not only prohibits federal funding of hESC research but that it does so unambiguously. This is important because in a challenge to an agency’s interpretation of a statute, the presence or absence of ambiguity on the relevant issue controls the extent to which the court will give the agency the benefit of the doubt. If the statute is unambiguous, the court will independently decide whether the agency’s interpretation is valid, without giving any special weight to the agency’s interpretation. But if the statute is ambiguous in a relevant respect, the court will defer to the agency as long as the agency’s interpretation is reasonable.
The plaintiff’s argument (which the district court accepted) goes essentially like this: hESC research uses human embryonic stem cells. Such cells are created (or, more specifically, derived) by extracting the stem cells from a human blastocyst (a five-day-old embryo) a process that results in the embryo’s destruction. So hESC research depends on the destruction of embryos and is therefore research in which human embryos are destroyed—even when the stem cells being used in a particular research project were derived before the project received federal funding.
The court of appeals rejected the argument that this was the only reasonable interpretation of the Dickey-Wicker Amendment’s text. This was the heart of the court’s reasoning (citations omitted; links added):
The use of the present tense in a statute strongly suggests it does not extend to past actions. [Here, the “past action” would be the derivation of the stem cells before a decision to fund research using those cells. –NG.] The Dictionary Act provides “unless the context indicates otherwise … words used in the present tense include the future as well as the present.” As the Supreme Court has observed, that provision implies “the present tense generally does not include the past.” [source] The context here does not, as our dissenting colleague would have it, indicate a different understanding. To the contrary,…NIH funding decisions are forward-looking, requiring the NIH to “determine whether what is proposed to be funded meets with its requirements.” Therefore, a grant application to support research that includes the derivation of stem cells would have to be rejected.
The court also rejected the argument that the word research had to be interpreted broadly: “The definition of research is flexible enough to describe either a discrete project or an extended process, but this flexibility only reinforces our conclusion that the text is ambiguous.”
The dissent disagreed both with the majority’s reliance on the statute’s use of the present tense and with its conclusion that research could be understood to denote a “discrete project.” I’ll deal with each of those issues in a separate post. Stay tuned.