IN 2004, CALIFORNIA VOTERS passed Proposition 71, the California Stem Cell Research and Cures Initiative, which authorizes the state to issue $3 billion in bonds to fund stem-cell research. The initiative also created the California Institute for Regenerative Medicine — a 29-person oversight committee — in charge of dispersing that money in the form of research grants at a rate of $300 million a year for 10 years. Shortly thereafter, two pro-life groups and one anti-tax group filed a series of lawsuits to stop the release of this money. Those smaller suits were consolidated into one larger suit and a trial before Alameda County Superior Court Judge Bonnie Lewman Sabraw. Well, that trial came to a close last week, and one thing is certain: Despite the millions of lives that top researchers claim could be saved by stem-cell technologies and the billions of dollars at stake, the stem-cell debate, to quote medical-ethics professor and former member of Clinton’s bioethics council R. Alta Charo, is still “about everything but stem cells.”
What it’s about is a whole other question. Proposition 71 came onto the ballot in 2004 as a direct rebuke to the Bush administration’s stem-cell restrictions, which severely handicapped the science’s potential by limiting research to several dozen existing, and often corrupted, stem-cell lines. The proposition was as much a play for big biotech dollars that had been migrating to less-restrictive climes abroad as it was an attempt to save lives. When it passed with 59 percent of the vote, it established a constitutional precedent for stem-cell research and, in the California Institute for Regenerative Medicine (CIRM), our own version of a National Institute of Health. All told, Prop. 71 constituted the largest state-sponsored scientific-research program in U.S. history.
Ever since it passed, opponents of stem-cell research — many of them pro-life ideologues who, among other things, oppose the harvesting of medically potent embryonic stem cells from fertility clinics that would otherwise discard them — have argued against the initiative’s legality. Not many of their arguments appear valid. One of them, contained in a lawsuit filed by Citrus Heights attorney David Llewellyn Jr., alleges that Prop. 71 loopholes would permit funding for “test-tube babies, or even adult human beings, for body parts, companionship or a permanent worker class of subhuman beings (à la Aldous Huxley’s Brave New World).” This was one of those arguments that was thrown out when the case was consolidated, but what remained wasn’t much better.
Technically, if that word can even be used here, at the crux of the anti-initiative argument is the idea that Prop. 71 is unconstitutional. The reason the anti–stem cell group claimed unconstitutionality has to do with CIRM itself. Despite CIRM members’ being appointed by elected officials and its funds overseen by the state’s controller, the opposition claimed that CIRM operates with so much freedom that it can’t even be considered a state agency.
“It’s not that their argument is entirely without merit,” says David Jensen, who publishes the California Stem Cell Report (www.californiastemcellreport.blogspot.com). “Nothing like CIRM exists in California. Its budget doesn’t have to go through the Legislature, but there’s a reason for this. You can’t convince scientists to spend years of their life working on something when the Legislature can decide to revoke their funding at any moment. Careers are ruined that way. CIRM’s structure exists to keep it free from political influence. Sure, it’s unusual, but the voters already decided that they liked this structure.”
Last November, Judge Sabraw warned the three stem-cell foes during pretrial that their case was thin. Not much has changed since then. In fact, the arguments presented by the anti–stem cell lawyers were silly enough that UCLA law professor and senior fellow at UCLA’s Center for Society and Genetics Russell Korobkin, writing in an L.A. Times column, called them “stalling tactics” and “an abuse to the legal system.”
Not that the “stalling tactics” are stopping stem-cell researchers from staking their claims. Several weeks before the case came close to finishing, the Massachusetts-based biotech heavyweight Advanced Cell Technology opened a 10,000-square-foot stem-cell research lab in Alameda specifically to take advantage of what the company is certain are soon-to-be-unshackled Prop. 71 dollars. How soon is another question. The legal proceedings concluded last week, with written closing arguments due any day now. Pretty much all observers agree that the opposition’s case is bound to fail. Unfortunately, that won’t stop an appeals process that could take as long as 15 months (though the Supreme Court may choose not to hear the case, which could shorten this time frame).
Meanwhile, there are roughly 150,000 cancer-related deaths in California each year. Cancer is one of those diseases scientists believe stem cells will someday cure. Since the state of California cannot issue bonds with litigation pending, another 200,000 people will die from cancer alone while this suit works its way through the legal system. Ironic, when you consider that it is primarily pro-life advocacy groups backing the suit.