The latest on California’s groundbreaking stem cell battle - from the frontlines, by Don C. Reed - www.stemcellbattles.com ...
Religious right and anti-tax groups are still suing to shut down the California Institute for Regenerative Medicine, the stem cell research program voted into law as Proposition 71.
This matters to me. My son Roman Reed is paralyzed, and I intend to see him walk again one day. For that to happen, stem cell research must advance. The lawsuit is an obstacle.
I attended the first trial, and am following it closely: it moves now into the appeals court. Whichever side loses there will doubtless appeal it to the California State Supreme Court.
Read on for an update: the opposition’s attack, and our defense. (I say "our" deliberately; we all have a loved one with an incurable disease or disability; when California fights for stem cell research, it is for everyone.)
Background: At the first trial, the Honorable Judge Bonnie Lewman Sabraw ruled in favor of California’s new stem cell program. With a 43-page carefully structured decision, Judge Sabraw pointed out the flaws in the opponent’s attempt to destroy the stem cell program. (I have written about this extensively; see the archive section at Karen Miner’s and my website, www.stemcellbattles.com)
The Judge’s verdict?
"...the court finds that Plaintiffs have not shown that the Act (Prop 71—dr) is clearly, positively and unmistakably unconstitutional. The Act...(is) valid."
The plaintiffs (those complaining against the stem cell program) are extremely powerful groups: the California Family Bioethics Council, an offshoot of Focus on the Family, begun by Dr. Charles Dobson; the Life Legal Defense Foundation, led by Dana Cody, (the group which got President Bush to do a press conference in his pajamas in the Terry Schiavo case); the National Tax Limitation Foundation, and People’s Advocate.
But California’s lawyers, led by Deputy Attorney General Tamar Pachter, had this to say:
"Appellants sued to invalidate Proposition 71... alleging violations of the California Constitution, statutes, and common law. The trial court entered a single judgment ... upholding Proposition 71... Appellants were given a full opportunity to develop their case and to present it at trial. THEY FAILED SIMPLY BECAUSE THEY HAD NO VALID CASE TO MAKE ..."(emphasis added with capital letters)
Now, the plaintiffs have appealed: saying Judge Sabraw’s judgment was wrong. They want the decision overturned, and California’s stem cell research program stopped.
Now I am not a lawyer; neither do I support their case in any way. But as fairly as I state their arguments, they believe:
- Proposition 71 is unconstitutional, because it gives public money to institutions not under state control.
- Proposition 71 violates the "single-subject" rule of initiatives, because it contains provisions allowing for not only stem cell research, but for "anything designated as a ‘vital research opportunity’ to "advance medical science’ in any field.
- The Independent Citizens Oversight Committee (the ICOC, which decides grants) is unavoidably corrupt, because it has business people from the biomedical industry, and representatives of colleges which may receive research grants--and the voters were not told about this conflict of interest.
- Scientific information on the ballot was unclear: the voters were not informed that Somatic Cell Nuclear Transfer is really cloning.
- Judge Sabraw did not allow the plaintiffs sufficient time and opportunity to fully state their case.
These are heavy-duty charges. Are they true?
In a word: no.
Let’s take a look at them, one by one.
- Unconstitutional? First, the California Institute for Regenerative Medicine is part of the California Constitution.
This is what the Constitution says about the CIRM: "Not withstanding any other provision of this Constitution or any law, the institute (CIRM), WHICH IS ESTABLISHED IN STATE GOVERNMENT (emphasis added with capital letters), may utilize state-issued tax-exempt and taxable bonds to fund its operations, medical and scientific operations, medical and scientific operations, medical and scientific research, including therapy development through clinical trials, and facilities."—article XXXV, section 6, California State Constitution.
That one sentence shoots down the opposition’s entire argument. The lawsuit is calling a part of the Constitution unconstitutional! (If there is a conflict, the newer portion automatically prevails.)
In any event, the ICOC/CIRM does indeed function under state control: every member of the ICOC takes the oath of office, must be governed by laws like Bagley-Keene and the Political Reform Act which control conduct of officials and their meetings; the Controller and Treasurer’s office make sure the funds are not misused; auditing is mandatory, etc.
- Single-Subject violation? The law requires that every part of an initiative have a reasonable connection, weaving together for a common purpose. For example, training grants: an objection was raised against training grants to prepare the world’s first generation of systematically-trained scientists. But training grants are research grants; the scientists learn by doing research. Ironically; the "vital research opportunity" cited as objectionable was intended primarily as a way to keep the door open for adult stem cell research, which even the most fervently anti-research ultra-conservatives support. The main goal of 71 is to fund areas of research "unlikely to be funded by the federal government", meaning SCNT and embryonic stem cell research. But if some form of adult stem cell research shows new promise, California would not want to miss it.
- Is the ICOC corrupt because it contains experts?
"...the voters adopted a specific form of expert government agency, (emphasis added) empowered to award grants. The voters adopted...conflict of interest regulations to control the actions of this agency.... None of these provisions were forbidden by any constitutional restraint. Indeed, Proposition 71 provides far more state control over taxpayer funds than the State Constitution requires, and it imposes conflict of interest controls even though the Constitution does not require it."
Not only the law but common sense suggests the advantages of expert involvement: to solve problems such leaders are uniquely qualified to handle. California law treats conflicts of interest as "transactional"; if a specific transaction might contains personal profit for a committee member, he/she cannot vote on it, or advocate for it. There, all can agree. But should committee membership be restricted to only those individuals without expert knowledge? Would that not be mandating ignorance? (Some have suggested that the Hurricane Katrina response would have been more efficient and caring if it had been carried out by experts in flood control, humanitarian assistance, rather than political appointees.) California wanted people who knew what they were doing; that is why they were chosen for the committee.
- Misleading language on the ballot? The opposition maintained that their views on Somatic Cell Nuclear Transfer (SCNT) had not been heard; the judge pointed out that the voter handbook itself contained exactly such opinions, written by opponents of the research. The argument was there; the voter rejected it.
- Not allowed to fully state their case? The opposition requested and got more than 14,000 documents. Again and again the judge would ask if they were ready, and they said yes. These are good lawyers, fighters, intelligent people. As individuals, I found them worthy of respect. I shook hands with them; we just disagreed. But they were up against something like they’d never met before: an impossible case, like trying to deny the existence of a mountain which everyone could see. For example, the plaintiffs earlier announced their intention to call dozens of witnesses. They ended up calling only one: Bob Klein. That was almost funny, if the stakes had not been so high; questioning Bob Klein on Proposition 71? Their lawyers kept hurling tough questions at him like lightning bolts; and the man who brought Prop 71 into existence would catch the lightning, turn it into light bulbs, and give it back as the light of information.
Proposition 71, the Stem Cells for Research and Cures Act, will be studied by future generations, as one of the most crucial—and well-planned—legal battles of our time.
It reminds me of a story I read once: about a soldier in a retreating army, chased by an overwhelmingly powerful enemy. The enemy is almost upon them, all hope seems lost. The exhausted troops enter a valley, the triumphant shouting enemy hot on their heels— and suddenly before them is a fort with trenches, high walls, reinforcements on the battlements—food, water, weapons—and the soldier realizes the defense had been carefully planned.
When I first read the opposition’s attack on the California Institute for Regenerative Medicine, the beautiful stem cell program which sprang from Proposition 71, I felt like the soldier in that retreating army.
The arguments against us seemed insurmountable: clever, well-worded, one-sided.
Then I read our defense.
And my head come up.
The attacks had been foreseen: our structure was sound. The opponents’ words were reduced to empty verbiage, doing no damage, bouncing off us like arrows off a roof.
Folks, the next time you attend a meeting of the Independent Citizens Oversight Committee (go to www.cirm.ca.gov for upcoming meetings) look for a slender man with short reddish-brown hair. That will be James Harrison, a lawyer from Remcho, Johansen & Purcell, now representing CIRM. He won’t say a lot, usually, but when he does, everybody listens.
With Bob Klein and others, Mr. Harrison helped write Proposition 71. He now protects it with the weapons of law. He works quietly, behind the scenes.
But generations yet unborn will benefit from the research he defends.