Next round in the US legal dance on embryonic stem cell research

Just to rub it all in: here is the next step in the ridiculous legal dance around US embryonic stem cell research. Today, US dept. of justice appealed Judge Lamberth's injunction against federal funding of embryonic stem cell research, reported on earlier. Looks serious enough, doesn't it? – so why ridiculous? you might ask. Well, for the simple reason that embryonic stem cell research proceeds in the US completely untouched by this parody of ethically concerned debate - just not with federal tax dollars. Instead, it is within the confines of the biotech industry that embryonic stem cell researchers are now proceeding to the stage of clinical trial, such as this one. Safely within the confines of commercial secrecy and thus out of the way of any flimsy government concerns over ethics or what have you. My very sarcastic salutations to this prime example of an hypocritical excuse for genuine moral concern!

More on the US Embryonic Stem Cell Research Policy Turn-around

Having just finished replying to a comment to my blog post yesterday on this topic, the news reached me that the US Department of Justice intends to appeal the injunction of Judge Lamberth. Today, the day after, renowned US bioethics scholar Art Caplan reacts with admirably restrained rage in a comment that fiercely attacks the argument made by Judge Lamberth, as well as giving some additional insight into what sort of gatherings, forces and petty interests are behind the suits leading up to yesterday's ruling.

So my guess was right, we have only seen the first moves in what will presumably be a long legal dance. A dance, I have claimed, that is built on hypocricy and outright foolishness - as so often when dogmatism meets real life.

US Stem Cell Legal Debacle the First Step In a Long Fight Based on Absurdity and Stupidity

Today The New York Times reported that US president Barack Obama's about one and a half year old turnaround of US policy on embryonic stem cell research has been halted by Chief Judge Royce C. Lamberth of the Federal District Court for the District of Columbia. Judge Lambert issued a temporary injunction against Obama's policy change that made federally funded research on embryonic stem cell lines legal regardless of when these lines were created. Before the change, federal funding (i.e. NIH grants) could only be granted to projects utilising cell-lines created prior to 9:00 P.M. EDT on August 9, 2001. The judge's argument for the ruling is that President Obama's policy change violates a 14 year old ban on the use of federal money for stem cell research involving the destruction of embryos. The complete ruling can be found here. US stem cell scientists have reacted with shock and the news have quickly waltzed around the world, giving quick and strong echo also in my own country (here, here, here, here, here, here, here, just to name a few), thus illustrating the importance of US policy in this area for scientists and clinicians all over the world, also in countries like my own, that allows stem cell research on the same conditions of ethical review as other types of human subject research.

Judge Lamberth's ruling is the direct result of a suit against Obama's policy change made by the so-called Alliance Defense Fund, a Christian lobbyist and legal activist organisation that describes itself as "defending the right to hear and speak the Truth". One may justifiably rant about the obvious absurdity of this claim in light of the fact that the suit against embryonic stem cell research is an obvious move to stop stem cell scientists to be able to find and speak the truth about stem cells and their role in the human body and impact on human health. However, at the same time, I was not surprised by this attempt from the world (in)famous US "religious right". After all, the basic ethical stance underlying this particular opposition to embryonic stem cell research is that the destruction of human embryos involved in creating the cell lines in question equals first degree murder. In consequence, using the products of such destruction for research equals a deeply immoral exploitation on the occurrence of what people holding this view logically has to regard as mass murder of the same epic proportions as the Holocaust, Stalin's terror and the "year zero" slaughter of Khmer Rouge Cambodia.

On the other side of the hedge, however, are all those people who do not subscribe to this extreme ethical view. Pointing to the enormous potential benefits to life and health of embryonic stem cell research they claim that even if human embryos are not "things" and worth protection (none of these people claim, e.g., that embryonic stem cell research should be unregulated or exempted from the requirement of research ethical review), the research is defensible.

In effect, we may probably look forward to a long legal battle in the US, Judge Lamberth's ruling being but the first step. But in the meantime we may ask about the ethical basis both for the ban on federal funding of embryo research and for Judge lamberth's application of this ban to stem cell research.

I must be honest and declare from the outset that US policy on embryo research has always struck me as part absurd, part plain stupid (no disrespect to US federal politicians intended, the stupidity is structural). This is not because I disagree with the basic ethical view on the moral importance of human embryos described earlier. That is, I do disagree with it, but even if this view is granted as an axiom, one would, I suggest, have to agree that US policy in this area suffers from a complete lack of supporting arguments. Having been involved in the academic ethics debate about embryo research as well as the process of political debate leading to the clear legalisation of embryonic stem cell research in Sweden in the early years of this century, I have had the opportunity to think about this topic once again recently, due to new research on the ethics not of stem cell research but that of regulating stem cell research, undertaken in cooperation with Daniela Cutas, and very recently published in the book Contested Cells - Global Perspectives on the Stem Cell Debate.

So let's start with the absurdity. The idea of the destruction of human embryos being murder, and the systematic such destruction thus being a case of genocide, does not directly imply that it is immoral to use cell lines resulting from such destruction for research or other purposes. For instance, even today, hospitals and doctors all over the world are making use of the results of the Nazi freezing experiments without any representative of the US religious right raising his voice in protest. However, we may also compare to how anyone of us would react if we learned that the hospitals of our country were making use of tissue and organs for transplantation that had been produced by the elaborate murder of people in other countries in order to obtain these organs and tissue. It is, I believe, in this vein that the opposition to embryonic stem cell research has to be understood - again, assuming for the sake of discussion the basic premise regarding the moral importance of embryos. Now, what is the logical conclusion of such a piece of reasoning? Well, I conjecture, it is certainly not that the sort of policy we find in the US is justified.

Consider the Bush policy of banning the funding of research on cell lines produced after August 9, 2001. As I understand it, the result of the ADF suit and Judge Lamberth's subsequent ruling is that this is the policy that is now in effect until further legal notice. However, this policy is not supported by the ethical argument just set out. This argument makes no difference between the destruction of embryos or the use of the cell lines thus produced on the basis of when this destruction and production took place. Murder remains murder even if it occurred before August 9, 2001, and what is, in virtue of the reasoning explained above, an immoral exploitation on the occurrence of murder remains so whenever the murder is supposed to have taken place. In fact, Dr. Cutas and myself conclude, in the chapter mentioned above, the only way to square the Bush policy with the view on the moral importance of embryos entertained by its supporters would be to revise the latter so that strong moral importance is attached only to embryos that exist after August 9, 2001. The absurdity of this sort of standpoint should be obvious even to the most nutty "pro-lifer". That is, had Judge Lamberth been consistent in his ruling, he would have invalidated not only Obama's but also Bush's policy on embryonic stem cell research. His current ruling is, in effect, genuinely paradoxical.

So, over to stupidity. This point regards not only US policy on stem cell research, but its entire legal take on all sorts of embryo research. Again, I'm assuming for the sake of discussion, the validity of the view on the moral importance of embryos already mentioned. Morally speaking, embryo research is in effect genocide. If true, this is excellent reasons indeed to ban embryo research, isn't it?! Indeed it is, however, US policy is not about banning embryo research. You may destroy human embryos by doing research or any other thing, as long as you are not funding your activities through federal taxes. Genocide is OK if you pay for it yourself!! In fact, it is well known among scholars studying the ethical, legal and social implications of genetics and reproductive technology that the chief effect of the US ban on federal funding of embryo research is that all activities where embryos are destroyed are now safely out of reach of any sort of regulation within the confines of the commercial secrecy of corporations and private enterprises. In consequence, embryos are being destroyed at least as much as ever, but due to the ban even farther off from the reach of the long arm of the law than before. This is simply stupid. Especially people who view embryo research as genocide should think so - on this basis, the conclusion has to be that the ban makes a bad thing even worse. And to get away from this stupidity, the only way would seem to lead back to absurdity; claiming that embryo destruction is not murder as long as US federal tax payers don't pay for it. Again, even the nuttiest of pro-lifer should recognise the absurdity of such a claim, and thus oppose and fight the ban regarding embryo research.

More on smart animal rights activism: the video

Here is a film with English subtitles describing the ongoing abuse at Swedish mink farms exposed by the Animal Rights Alliance as a part of its new take on activist tactics, discussed in a former post on this blog. The film is also in itself a good illustration of what is involved in the new tactic:


Horror revealed on Swedish fur farms from Djurrättsalliansen on Vimeo.

New Swedish animal rights activist tactics is smart, effective and strategically sound

Animal rights activism in its various forms is motivated by a basic aim that you need to be particularly callous not to sympathise with – to prevent forthcoming and stop ongoing needless animal suffering. In developed countries, this includes an abundance of production and distribution practices, not least within the agricultural sector, but also in, e.g., research, product control and clothing production. However, the methods used by some activist groups have provoked harsh criticism for being illegal and overly violent and inconsiderate to property related interests. In my own country, such groups were quite active using these kind of methods (such as breaking into farms and medical labs destroying equipment and freeing animals, burning vehicles for meat distribution, and so on). A quick Google search seems to indicate that this sort of tactic is still quite common internationally.

However, there is much evidence that while the use of these sort of illegal methods can probably be initially effective for placing animal rights issues on the political agenda, very soon they start to rather serve the interests of those groups aiming to politically discredit the animal rights (and also the environmentalist) movement as a whole (in order to prevent truly effective political measures, such as strengthened animal protection and rights legislation). At the same time, even if much has happened on this front in many countries, not all people committed to the animal rights agenda are suited for the tedious political work of a parliamentary democracy while at the same time being discontent with restricting their action to adjustment of practices in their private lives. Understandably, they feel a strong urge to do something concrete and practical with salient beneficiary effects for the cause and, presumably, it is this urge that explains the continuation of the use of the more extreme methods in spite of the just mentioned criticism.

Therefore, I have noted with some interest a recent change of tactics employed by Swedish animal rights activist groups - in particular the so-called Animal Rights Alliance (Djurrättsalliansen, in Swedish). Instead of breaking and entering, destroying property, creating risks for the public (e.g. through setting fires), terrorising individual farmers , shop owners and the like, the new tactic is to adopt the role of the concerned citizen gone investigative journalist slash spin doctor. About a year ago, ARA went public with a rich collection of materials (videos, photos, audio recordings, sworn witness statements) documenting systematic and widespread criminal abuses of current Swedish animal protection legislation in pig farming. The material had been collected over an extended period of time (almost two years) with great care and obvious insights into what a prosecuter might need to make a case and what would force responsible control agencies to take action. The publication was made with great skill as to how to awake media interest (to its help, ARA had the undisputed fact that one of the worst abusers, Lars Hultström, was a former chairman of the Swedish animal farming association, Swedish Meat, and, in addition, an acting board member of the veterinary company Swedish animal health care, owned by my country's largest distributor of meat, SCAN, and being responsible for this company's animal health protection program). The effect was a public outcry of some magnitude in support of the animal rights cause, criminal legal action taken against Hultström and several others, considerably beefed up control procedures from responsible agencies uncovering yet other legal abuses and mismanagement within Swedish pig farming (with lame excuses from the farmers about not knowing the rules that had been waltzing around the press for several months thanks to ARA's exposure). In the end, whatever will in the final outcome of the legal processes (although formal charges have been extended against Hultström et.al., the prosecutor is still preparing the case), ARA managed to expose more or less the totality of Swedish industrial pig farming with, first, its pants down and, then, its socks far from pulled up.

After this very successful action, ARA has followed up with formally charging the Swedish Board of Agriculture (responsible for animal protection control) for misconducting its responsibilities and thus causing unnecessary suffering for thousands of chinchillas. And then yesterday, ARA went public with a new exposure of illegal abuse in animal farming, this time regarding minks for fur production. Once again, the case is airtight, the timing perfect and the strategic thinking (the aim is to press Swedish politicians to adopt a general ban on mink farming similar to that of several other European countries) brilliant. Obviously the media strategy works, since the exposure was all over the national news – papers (here, here, here, here), radio and TV. In just a couple of years, this new tactic has achieved so much more and mobilised so much more public support for the animal rights cause than all those smashed up medical labs, burned meat trucks, crushed fur shop windows, etc. did over a period of at least two decades in the past. My hat off!