At Last — A Rational Judicial Decision that Protects
By Thomas A. Glessner, J.D.
September 9, 2010
Recently federal judge Royce Lambert issued a preliminary injunction barring the federal government from funding scientific research that uses stem cells derived from human embryos. The law suit was brought against the federal government by stem cell researchers who said the Obama executive order allowing federal funding for such research from the National Institutes of Health violates federal law prohibiting funding of the destruction of human embryos through scientific research.
Judge Lambert's ruling cited the Dickey-Wicker Amendment, passed by Congress in 1996, which bars the use of federal monies for "research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death." Unfortunately, the U.S. Court of Appeals in Washington has put on hold this injunction saying that it was not ruling on the merits of the law suit but only to give Judge Lambert "sufficient opportunity to consider the merits of the emergency motion for stay." The appellate court emphasized that its decision "should not be construed in any way as a ruling on the merits of that motion."
The removal of embryonic stem cells from an embryo for research purposes, of course, means that the embryo is killed in the process. Thus, the clear intent of this law is to protect embryonic human life. However, in the early days of his administration President Obama issued a presidential executive order that attempted to circumvent the Dickey-Wicker restrictions and allow federal funding for such research, as long as the actual killing of the embryo is paid for with private funds. The administration argues that under the Obama executive order federal funds only pay for experimenting with stem cells taken from embryos — not for experimentation on the embryos themselves. Therefore, the administration asserts that since such research only deals with stem cells already available, and not with human embryos, it should be allowed.
Judge Lambert saw this fine line distinction unpersuasive and issued a preliminary injunction against the funding saying, "(Embryonic stem cell) research is clearly research in which an embryo is destroyed. . . Embryonic stem cell research necessarily depends upon the destruction of a human embryo." An injunction of this nature is issued by a court only if the prevailing party shows that there is a strong likelihood of success on merits when the matter goes to trial. Thus, in the judge's opinion, there is a strong likelihood that this injunction will become permanent after trial.
I was ecstatic in reviewing this decision because finally a federal judge has made a ruling based upon the clear reading and intent of the law, as opposed to his or her own personal political preferences. Nobody knows what the personal views of Judge Lambert are on the issue of fetal embryonic research. However, such views are totally irrelevant. It is the role of the judiciary to interpret the law as it is clearly intended and not to base decisions upon political biases and what they think the law should be. The language and intent of the Dickey-Wicker Amendment are clear. Judge Lambert's ruling merely abides by this intent, as unmistakably expressed by a bi-partisan Congress in 1996.
This apparent judicial philosophy of Judge Lambert is not adhered to by other federal judges. In fact, activist judges who have a political agenda to achieve would probably have rendered an opinion in favor of the Obama administration's desire to expand federal funding of fetal embryonic research.
When I was in law school my constitutional law professor emphasized how the law was a tool to be used to achieve a more just society. A judge, in his opinion, has a duty to interpret the written law — both constitutional and statutory — in a manner that corrects societal injustices, as he or she perceives them. The proper role of a judge in this scenario is to make sure that those who, in the opinion of the judge, are aggrieved victims of injustice are compensated by the courts for their sufferings. If, according to my professor, the law inadequately provides remedial help to such victims then the judge must stretch the law and make necessary adjustments so that justice prevails. In other words, a judge, under this view, should serve as a legislator and create rules of law that will achieve a just result (as defined by the judge), as opposed to merely applying the law as written to the situation at hand.
To left-wing political activists this view of the role of the judiciary is essential to achieve their political ends. If they fail in passing their agenda through legislative means they resort to the courts arguing that the law, adopted by the representatives of the people, is unjust and unconstitutional. Unelected life-time appointed federal judges then are encouraged to change the law based not upon its clear wording or intent, but rather upon their own political views. Under this scenario judges are viewed as super-legislators who are much wiser than the elected representatives of the people and thus, can overrule the decisions of the people made through the electoral process.
The greatest example of this kind of judicial mischief is found in the infamous 1973 decision of Roe v. Wade, which overturned the laws of all fifty states that prohibited and restricted abortion. The word "abortion" does not appear in the U.S. Constitution and prior to 1973 the act was regulated and prohibited by the criminal laws of each state. Yet, the high court somehow found a way to decriminalize abortion and by making it a constitutional right it voided the laws of each state adopted by their elected representatives. The Court did this by stretching a previously found constitutional and unspecified general right of privacy (which also does not appear in the Constitution) to include a right to terminate a pregnancy.
In so acting, the Court arrived at a political result that the political advocates of abortion on demand could not have achieved through the legislative process. Since this decision more that 52 million unborn children have died from abortion and the nation has been divided in a manner not seen since the days of slavery. This so-called superior wisdom of the judiciary has wreaked havoc upon our nation.
America is a constitutional republic. We elect representatives of the people to pass laws for the betterment of society. If such elected representatives pass laws and regulations that do not accomplish a more just society then the public has the ability to change their elected representative through the ballot box. This is clearly what government of, by and for the people means. The role of the judiciary is not to create laws but to properly interpret them and apply them to the situation that they are reviewing.
A judge must not arrive at a decision based upon what he or she desires politically, but instead solely upon the clear meaning of the law in question. This is exactly what Judge Lambert did in his decision to enjoin federal funds from being spent on embryonic research. It is also what he is being criticized for by the Obama Administration and by those who desire to have the law used to achieve their political agenda. To such people it is irrelevant that the Dickey-Wicker Amendment was passed by elected representatives and signed into law by President Clinton. Rather, since they do not like this law they want the judiciary to circumvent the political process and come up with their desired result of expanding federal funding of fetal embryonic research.
The decision of Judge Lambert is an example of correct judicial reasoning and logic. Further, it protects human life from destruction. If this decision is upheld at trial and on appeal it will open up avenues for federal funding of research using adult stem cells, which has shown great promise in finding cures for certain diseases.
The issue of the judiciary and its role in our system of government is not an issue being discussed much these days by candidates for political office. But it should be. And the example of Judge Lambert in this recent decision is a model for politicians to endorse and support once they are in elective office.
Copyright © 2010 by Thomas A. Glessner. All rights reserved.