Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The U.S. District Court for the District of Columbia has dismissed a lawsuit challenging the Obama administration's new rules on federal funding for stem cell research, which reversed the Bush policy of prohibiting such funding in most cases. And I'm not usually a big fan of dismissing cases based on standing, but in this case there was just no legal basis for the challenge at all.
The plaintiffs in the case were the Christian Medical Association; Nightlight, a Christian adoption agency that urges the adoption of frozen embryos from fertility clinics; two doctors, James Sherley and Theresa Deisher, who do adult stem cell research but refuse to do embryonic research; two couples who have adopted such embryos; and - amusingly - the embryos themselves. Yes, they sued on behalf of all the snowflakes sitting in fertility clinic freezers.
The court dismissed the case for all plaintiffs based on a lack of standing. And it's really hard to imagine what the legal argument might be for the suit by any of them. Here's how the court summarizes their claims:
Plaintiffs allege that the guidelines, by allowing NIH to fund hESC research, will cause them irreparable harm. Specifically, Drs. Sherely and Deisher contend that the new guidelines will "result in increased competition for limited federal funding and will thereby injure [their] ability to successfully compete for . . . NIH stem cell research funds." Nightlife alleges that the guidelines will cause a decrease in the number of embryos available for adoption...The Nelsons and Flynns maintain that the guidelines will "jeopardize the likelihood that embryos will become available" for them to adopt in the future. Finally, CMA alleges that the guidelines will frustrate its purpose and require it to expend significant resources to combat the ethical problems posed by hESC research.
Those are some profoundly silly legal claims. The Christian Medical Association seriously thinks that a change in government policy that they oppose will cause them "irreparable harm" because it will force them to spend money and resources opposing that policy? If that was a legal basis for overturning a law, no law could ever be passed for any reason.
The claim from the researchers is equally absurd. So a change in NIH policy limits the availability of funds for the research you'd like to do and makes it less likely you'll get a grant? Okay. So what? Where is the legal issue in that situation, exactly? What provision of the constitution could you possibly claim is being violated here? This is the kind of thing that would get a student in law school a failing grade if they turned it in.
The court dismisses this on standing grounds, but I would prefer it if they had dismissed it for failure to state a claim upon which relief can be granted. I suppose there's some procedural reason that requires that you consider standing before considering whether the plaintiff has stated a justiciable claim, but it's the justiciability that is the real problem here.
In this case, there simply is no legally protected interest at stake for any of the plaintiffs. You can read the full ruling here (PDF).
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Perhaps the should hire 'oily titz', I mean she's been sooo sucessful so far, what's she got to lose? - DJ
Posted by: DingoJack | November 2, 2009 10:21 AM
Ed: The process runs like this:
1. Does the Court possess personal jurisdiction over the parties?
2. Does the Court possess subject matter jurisdiction over the case or controversy?
3. Do the plaintiffs have proper standing to sue?
4. Is the case moot, a "political question," or unripe for some reason?
Only then, 5. Are the Plaintiffs stating a claim on which relief can be granted (FRCP 12(b)(6)?
The procedural distinction is that until the 12(b)(6) Motion to Dismiss, the case is dismissed without prejudice, meaning the Plaintiffs can amend the Complaint and refile, assuming the standing problem can be cured. It can't.
Posted by: kehrsam | November 2, 2009 10:38 AM
Ah, thanks kehrsam. I have a pretty good layman's understanding of the broad legal questions in such cases, but not having practiced law I have little understanding of such procedural matters.
Posted by: Ed Brayton | November 2, 2009 10:52 AM
Just wait until those embryos find out. They'll be sooo pissed off!
How on earth can a suit be filed on behalf of a potential person? Is there any precedent? Was any thought given to including the interests of sperm and egg as plaintiffs? After all, when two gametes (each is precious, recall) find each other don't they have a reasonable right to expect, to look forward to and cherish, the potential of their union?
Posted by: Crudely Wrott | November 2, 2009 10:57 AM
@DingoJack #1: Yeah, whatever happened to Orly? She seemed to drop off the map after she got fined $20k. I thought for sure she'd keep agitating, but maybe she finally had a brief moment of rational thinking and realized she was just digging herself deeper?
@Crudely Wrott #4: Don't laugh. My wife is facing a lawsuit on behalf of several million of my sperm, who allege that her use of contraceptive medication prevented them from becoming people and thereby finding a job. Each one is suing for 65 years of lost wages!
Worse yet, they are seeking a restraining order that would bar me from any further non-reproductive ejection of sperm until the judge rules on the civil suit. This is not good...
Posted by: James Sweet | November 2, 2009 11:06 AM
James Sweet,
Oily has had another suit dismissed by Judge Carter in which he speculates on the seriousness of her suborning perjury. A laugh a minute is our dentist from OC.
Posted by: MikeMa | November 2, 2009 11:22 AM
I wonder if this might be a publicity stunt - never intended to succeed, only to raise funds. Or perhaps to create an annoyance, in the hope of forcing their opponents (Who were they suing, exactly?) to spend money on defence.
Posted by: Suricou Raven | November 2, 2009 11:22 AM
In one famous Dissent, Justice Douglas argued that prominent landscape features could have standing to sue (in self-defense, perhaps?). But then, Douglas was pretty crazy by 1972.
SIERRA CLUB v. MORTON, 405 U.S. 727 (1972)
Posted by: kehrsam | November 2, 2009 11:26 AM
"Finally, CMA alleges that the guidelines will frustrate its purpose and require it to expend significant resources to combat the ethical problems posed by hESC research."
Now this has potential. By this "logic," groups that support the decriminalization of drugs should be able to sue your Feds (I'm Canadian) on the grounds that the groups have to expend significant resources (that could otherwise be devoted to tending their gardens) to combat the batshit-insanity posed by the reefer-madness fueled current Fed policies.
Posted by: Philip T | November 2, 2009 12:04 PM
James Sweet, #5:
Distressing news concerning that pending suit. Not to assume things could be worse but the suit might make any consideration of a vasectomy problematic in terms of unrealized potential. Sticky wicket, that.
Posted by: Crudely Wrott | November 2, 2009 12:17 PM
Since research funding cannot be infinite, every grant awarded must, perforce, result in some other grant being denied. Under plaintiffs' theory, all those whose grant was not funded could sue. That would eliminate the need for those interminable NIH study section meetings to decide on grant priority scores and put those decisions into the courts.
An economic stimulus to the lawyers, but a loss to the hotels in Bethesda, MD.
Posted by: JusticeLeague | November 2, 2009 12:46 PM
Locus standi is one of the interesting areas of difference between US law and some other jurisdictions. (By way of background, I'm a law student in England.) In England and Wales, our rules on standing in administrative law cases are actually remarkably liberal; for instance, in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement, a development charity was allowed to mount a legal challenge to the British Foreign Office's funding of a dam in Malaysia, despite having no direct right or interest at stake whatsoever.
Personally I'm a big fan of tighter locus standi requirements; I think the US approach is vastly preferable to the English one. It reiterates that the judicial process isn't a political forum for airing any and all grievances; it's a means of vindicating legally-protected rights and interests which have been violated by others. Third-party groups with special expertise can still intervene in cases via amicus briefs, of course, but they shouldn't be able to bring cases in their own right unless they (or their members) have a direct right or interest at stake.
Posted by: Walton | November 2, 2009 1:33 PM
Sierra Club vs Morton (decided 4-3, by the way) is the subject of a book by Christopher Stone Should Trees Have Standing?. It's not a nonsense question. Not even close.
Standing is a legal fiction, and as such, we can assign it as we see fit. The 19th century legal profession grappled with great difficulty repeatedly with giving corporations standing or not. Eventually, in the US SCOTUS flat out announced that corporations were persons under the law, without any debate whatsoever.
Posted by: william e emba | November 2, 2009 3:09 PM
The 19th century legal profession grappled with great difficulty repeatedly with giving corporations standing or not.
Say what? "Corporations" have existed, in various forms, since the Middle Ages, if not earlier; and have had some form of "legal personhood" since then as well. It's not exactly a new concept, nor is it something our Supreme Court just pulled out of its (collective/corporate) bum one day.
Posted by: Raging Bee | November 2, 2009 3:15 PM
Partially, Raging Bee. The idea that anyone can form a corporation at basically any time, for basically any purpose, and for a nominal fee is a very young idea. Earlier there were business forms with fictional personhood which did not provide a personal liability shield (these forms still exist, but are nearly disused in the US as far as I can see). Earlier there were corporations, but forming one generally required a charter issued by an individual act of the government (in the US, a state legislature), generally on a finding that forming such a corporation would serve a public purpose. The idea that much of the bill of rights, as extended by the 14th amendment, applies to corporations through their fictional personhood is in fact something that SCOTUS pulled out of its collective bum one day (well, several days, but the idea is the same). I say this without comment on the extent to which they may have been correct.
(I'm open to being wrong here, and I'm not disputing your point in rebuttal to William Emba that corporations had standing in the 19th century and earlier. As I understand it the controversy was/is over which rights corporations had/have, and not over their standing per se.)
Posted by: Douglas McClean | November 2, 2009 6:09 PM
Ok, I'll bite what's:
Personal jurisdiction
Subject matter jurisdiction?
Thanks - DJ
Posted by: DingoJack | November 3, 2009 2:31 AM
Dingojack: I'm neither a lawyer or an american, but my guess would be:
personal jurisdiction: Does the court have jurisdiction over the claim independant of what it is about. E.g.: a court in hawaii would not have jurisdiction over switzerland.
subject matter jurisdiction: Does the court have jurisdiction over the case's subject. E.g.: civil Vs criminal etc
Just a guess
Posted by: Mithandir | November 3, 2009 4:35 AM
DJ: Personal Jurisdiction: Do es the Court have jurisdiction over the parties? E.g., a North Carolina Court would not ordinarily have jurisdiction over a Defendant living in California.
Subject Matter Jurisdiction: Courts' jurisdiction is defined by Constitutions or by statute, or both. Thus, if I am seeking to file for bankruptcy, I don't file in my local Federal District Court, because it cannot hear the case (by statute). Instead, I must file in the local Federal Bankruptcy Court.
All this is one of the Birthers biggest problems, in that it is unclear where they may file their suits, and they don't seem to know who the proper parties should be (i.e., not Barry Soetero).
Hope that helps.
Posted by: kehrsam | November 3, 2009 7:47 AM
Kehrsam - Thanks and apologies for the idiotic questions. - DJ
Posted by: DingoJack | November 3, 2009 8:04 AM
Corporations certainly existed before the 19th century. They were rare, though, and generally were created one at a time, by specific legislation. The legal profession dealt with them almost entirely on a case by case basis. The idea of a general framework where pretty much anyone could roll their own corporation for a few dollars and a bit of paperwork was a late conception.
The first legal turning point was 1819 Dartmouth v Woodward, where John Marshall wrote what a weird "artifical being" corporations were, but held that their founding charter constituted, in essense, a contract, which states were forbidden to interfere with.
States did not like this, and some went so far as to try amending their own constitutions. This too was struck down in 1856 Dodge v Woolsey.
The second legal turning point, the idea that corporations were legal persons (subject to 14th amendment protections) was in fact created by the court reporter who gave the official summary of the 1886 Santa Clara ruling. It was mentioned as an aside--the court did not rule on the issue whatsoever!
In much of Europe, animals have various strong legal rights. In Ecuador, entire ecosystems now have legal rights.
Posted by: william e emba | November 3, 2009 10:08 AM
The first legal turning point was 1819 Dartmouth v Woodward, where John Marshall wrote what a weird "artifical being" corporations were, but held that their founding charter constituted, in essense, a contract, which states were forbidden to interfere with.
The second legal turning point, the idea that corporations were legal persons (subject to 14th amendment protections) was in fact created by the court reporter who gave the official summary of the 1886 Santa Clara ruling. It was mentioned as an aside--the court did not rule on the issue whatsoever!
Posted by: sharma | November 4, 2009 12:57 AM
And it gets weirder when you find out who the court reporter was. Dun dun dun!
Posted by: Modusoperandi | November 4, 2009 2:13 AM
Actually, Marshall, writing for the Court, talked about corporations as "artificial beings" earlier, in 1809, Bank of United States v Deveaux etc and clearly rejected the idea that they had personhood. He contrasts this with ships! (See, for example, the 1819 case United States v Schooner Little Charles, where Marshall emphasizes the case is against the vessel itself, not its owner. Apparently this case is the model for our current seizure without trial laws.)
Posted by: william e emba | November 4, 2009 4:10 PM
I think that these people need to have a reality check!!!! It is apperent that none of these people that oppose stem cell research have ever looked into a loved ones eyes and and had them not know who you are!!! thousands of babies get born into this world and there parents live off welfare there whole lives and the kids suffer becaus ethier parent use those welfare check to get high if we can end suffering of a child by putting the embyo to good use why not??? if we can take aborted babies and cure what we thought was incurable why not??? OH its not ethical?? let me ask you we have homeless people on the streets and no money for them but we can invest hundreds of billions of dollars into weapons where are the ethics there??? we have people in the white house that hold stocks in companies that produce weapons for war where are the ethics there if the intrest for them is to stay at war to make more money!!! If the majority of Americans would open there eyes and blow the smoke out of the way they would realize that our government is pretty screwed up. so as far as ethics they go out the window along with privacy since everything that is said on a phone call or sent in an e- mail or even this right here is being monitored!!!!
Posted by: Foolish | November 6, 2009 3:07 PM
Talk to me when Embryonic Stem Cell Research
produces just a small hint of SUCCESS ----
I'm sure I won't be hearing from any of you SOON---
Lee
Posted by: Lee Danzl | November 7, 2009 3:48 PM
Lee @ 25
We'll never know one way or the other if embryonic stem cell research can be successful at curing diseases unless we actually do the research. No research no knowledge.
Posted by: David Holland | November 7, 2009 5:14 PM
Dave---
Please take some time to study the matter a little further -
Embryonic stem cell research ESCR has been going on for a long time and to date has not produced ONE positive result
for any medical condition -NONE-
Adult stem cell research ASCR to date has produced success
in varying degrees to over 70 medical conditions --
At one time it was thought that stem cell could only be harvested from Cord Blood -- as of late researchers are
finding that ASC care be harvested from many parts of the
body -- the skin - the heart itself -- they are getting adult stem cells from all parts of the body -- the stem cells that regenerate the body on a daily basis ---
Because the stem cells are taken from the patient themself-
there is no worry of REJECTION which is a big problem then
you use ESC -- Cost of anti rejection drug cost upward of
$10,000.00 per month --- Soon it will be proven that the
embryonic stem cell are obsolete --- they are just to wild
and can't be controled -- and in most case become cancerous-
Good Luck
Lee
Posted by: Lee Danzl | November 8, 2009 2:14 PM
Since only conception occurs and birth does not, then the 14th Amendment does not apply,as to citizenship, and since a birth did not occur a person is not created, therefore the Constitution only applies to property and commerce.
Posted by: borderraven | November 16, 2009 10:51 AM