Tuesday, August 24, 2010

Embryonic Stem Cell: Bad Rulings vs. Bad Laws

I saw this article today:

Humanists Decry Stem Cell Research Ruling

(See: Humanists Decry Stem Cell Research Ruling)

I would like to know what they are decrying exactly. I am a major advocate of embryonic stem-cell research. However, I am also an advocate of judges reaching conclusions based on what the law says, not based on what this or that group wants the law to say.

The ruling that the Humanists are decrying in this case states that Obama's executive order allowing NIH funding for embryonic stem cell research violates a law prohibiting federal funding of research that results in the destruction of an embryo.

The ruling is an injunction against any use of federal money to fund embryonic stem cell research. It is not a ban on research. All existing research can continue as long as the funding comes from a source other than the federal government.

These humanists object that the ruling:

. . . is a step backwards for science, a likely disruption to important research, and this will cause real harm to many in need of medical innovation.

This may be true, if private contributors are not willing to step up to the plate.

However, it seems like these "humanists" arguing that judges should ignore those laws where enforcing them will have adverse effects.

If they are, then they are arguing a position that will substantially contribute to the end of the rule by law. To argue this is to argue for a situation where judges base their decisions on their beliefs about the law's merits - and it would be dangerous in the extreme to give judges that type of authority.

The types of arguments that would be relevant to decrying the ruling are arguments to the effect, "This is what the law says, and this is why these actions are not in violation of the law."

In this case, federal law prohibits the federal funding of research that results in the destruction of an embryo.

According to the judge:

[Embryonic Stem Cell] (ESC) research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryo results in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo.

But that is not what the humanists give us. They give us political rhetoric that blames the judge - at least judging from the article itself - for the moral crime of doing his job.

The defense in tis case responded by saying that the term "research" in the original law is ambiguious.

The Judge reports that "research" within the law is defined as:

a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.

And that the work being done on embryonic stem cells is consistent with the core meaning of the term "research" consistent with the intention of the Congress.

In reading the opinion, the judge offered some good reasons for his conclusion. I would further argue that anybody who sought to defeat a law because its definitions are fuzzy around the edges would give us an argument for objecting not only to every law written, but every law that can be written. We will always have definitions that are fuzzy around the edges. If we are going to have any law at all we need a system where "fuzzy around the edges" is not a viable defense.

Like every law, this one violates the "fuzzy around the edges" test - but that is not a legitimate test. This law does not fail any test I know of that places reasonable and rational requirements on interpretation.

We are further told that:

The AHA is in support of any bill that seeks to strip the Dickey-Wicker Amendment of its prohibition against the use of stem cells for scientific research.

First, this is a lie. The law prohibits federal funding for this research, not the research itself.

Second, I agree, we should support attempts to remove bad laws that stand in the way of sick and injured people obtaining medical help that does no harm to any actual person.

However, this involves decrying the law on which the ruling is based, not decrying the ruling itself. The ruling, to me, seems quite sound and well-reasoned.

It's the law that sucks, not the ruling.

Or, if you are going to decry a ruling, let me know what the judge did wrong and that it is something OTHER than enforcing a law that the complainer does not like. It would be nice if the American Humanist Association could show enough intellectual acuity to tell the difference.

And, please, when a judge is doing his job, give the judge a break. Do not vilify judges for the crime of upholding the laws one disagrees with. Praise the judge, then change the law.

And while we're at it, let's see which of these research projects now need non-federal money and make sure that they get it.


Doug S. said...

Part of the problem is that "what the law says" is frequently ill-defined and outright contradictory - and, as every logician knows, you can derive anything from a contradiction. So judges who try to rule entirely on the basis of "what the law says" are faced with an impossible task.

For more information: http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm

(The site has an awkward background color, so you might like the PDF version better: http://faculty.msb.edu/hasnasj/GTWebSite/MythFinalDraft.pdf)

Alonzo Fyfe said...

Doug S.

Yes. Nothing I wrote disputes that fact.

Yet, it is a bit of a stretch to say, "There are contradictions within the law so all onclusions are equally valid.

It is still incumbent on those who wish to argue that the law is constradictory to provide specific evidence of contradictions, rather than rely on a general and vauge "contradictions exist" which, if accepted as a valid part of legal interpretation, would bring an end to the entire project of rule of law.

If the AHA were to bring up specific and relevant contradictions, then they could have made this point.

They did not.

Luke Radl said...

You're absolutely right. If judges ruled on their personal beliefs instead of the law we might have had a very different result in the Kitzmiller v Dover trial. It's the law that needs changing.

Anonymous said...

I can here conservatives screaming about "activist judges" already.. ;-)

Doug S. said...

Incidentally, judicial rulings have changed an awful lot over the years. Did you know that the Bill of Rights was first held to apply to state governments in 1925?

Kristopher said...

you're right he made good legal decision. people need to understand the goverment enough to get mad at the right people. don't get mad at the president for not passing a law... that's congresses job. dont get mad at a judge for a bad law... that's congress's responsibility too...

@ Doug S. when laws contradict the newer laws are supposed to trump older laws (that way old laws dont have to be repealed only replaced which saves time)

the 1925 ruling over-turned a ruling from 1833 not on the basis of reinterpreting the same contents of the constitution but that the constitution had changed in 1868 to include the 14th amendment. thus it was a change in law not in interpretation.

for a good interpretation changing case look at the korematsu v united states and the one after or the cases during and after the Mcarthy era regarding the treatment of american solcialists.

judges are people and when they are afraid they make the same bad decisions that the rest of america makes (but many years later they tend to reverse those decision) i predict that when you are 50 you will be as embarrased for america about the islam-scare as your father is about the red-scare, and your grandfather is about the Japanese-american internment camps. i am already embarrased about the whole thing...

but this is not one of those decision this judge did his job well. congress did not.