Congress of the Gnited gotates WHashington, BWC 20515 February 11, 1999 The Honorable Donna E. Shalala Secretary of Health and Human Services 200 Independence Avenuc, §.W. Washington, D.C. 20201 Dear Madam Secretary: Last month the General Counsel at HHS, Harriet Rabb, issued a memorandum to Dr. Herald Varmus, Director of the National Institutes of Health (NIED, supporting the claim that taxpayer funds may be used for reacarch on stem cells taken from living human embryos. Shortly thereafter, and using the Rabb memo as a basis, Dr. Varmus announced that NIH will reverse current federal palicy and begin funding research which relies on the mutilation and ‘destruction of human embryos. We wish to express to you, in the strongest possible terms, our objection to Ms. Rabb’s memo and to Dr, Varmus's decision. Any NIH action to initiate funding of such research would violate both the letter and spitit of the federal lew banning federal support for research in which human embryos are harmed or destroyed.’ Rather than providing guidance on how best to implement the law that Congreas passed and the President signed, the memorandum appears to be a carefully worded effort to justify transgressing that law. In her memorandum Ms. Rabb makes significant ertors an the way to her conclusion that it would be permissible for NIH to fund research using stem cells harvested from human embryos. We call upan you to correct the General Counsel’s interpretation and to reverse Dr. Varmus’s decision. — ' Since January 1996, Congress has included in the annual Labor, Health and Human Services, Education Appropriations Act a section prohibiting funding for this type of research, Section 511 of the most recently enacted research funding bill, Public Law 105-277, provides (in part) that-- (a) None of the funds made available in this Act may be used for-- " (1) the creation of a human embryo or embryos for research purposes, or (2) research in which a human embryo or embryos aro destroyed, discarded, or knawingly subjected ta risk of injury or death greater than that allowed for research on fetuses in utero under CFR 46.208(a)(2) and section -498(b) of the Public Health Service Act (42 U.8.C. 289a(6)). PIWATED ON RECYCLED PAPER The Honorable Donna E. Shalala February 11, 1999 At the start of her analysis, the General Counsel unilaterally narrows the meaning of “research in which a human embryo or embryos are destroyed” and states that it prohibits only direct federal funding of the specific aot of destroying the embryo. In this way she limits the scape of the law passed by Congress. While the act of destroying or injuring an embryo would certainly bo ineligible for Federal funding, the law has a broader application. It also bars the use of tax dollars to fund research which follows or depends upon the destruction of or injury to a human embryo. Congress could have structured paragraph (2) of subsection (a) of the law like paragraph (1) and simply prohibited the use of funds for the destruction or discarding of human embryos. We did not do that, and by established rules of statutory construction, IIHS may pot construe the law's provision on “research in which” embryos are destroyed as narrowly as its provision on the creation of embryos.” Instead, we prohibited the funding of research projects in which the Isthal dissection or harmful manipulation of living human embryos is a necessary prerequisite, including projects where the material used in the experiments is obtained by destruction of an embryo that would not otherwise be dane (or not otherwise done in the sams way). In congressional testimony, Dr. Varmus has confirmed that it is impossible to obtain stem cells from embryos for these experiments without destroying the embryos. ‘The Rabb memo alsa ignores the policy reflected in current law on fetal tissue transplantation research using tissue froma intentionally eborted children. While that law is itself open to criticism, it at least bans the use of fetal tigstte in federally funded research if abortion was induced for the purpose of providing the tissue. Under current law, federal funds may not be used for fetal tissue transpluntation experiments following an abortion if the timing and method of the abortion were altered solely for the purpose of providing usable tissue for rescarch. Yet, in the embryonic stem cell research which NIH proposes to fimd, the timing, method and procedures for destroying the embryonic child would be determined solely by the federally funded researcher’s need for usable stem cells. Finally, hoth-Ms. Rabb’s memorandum and Dr. Varmus's testimony before a Sefiate subcommittee present a new definition of “human embryo” that would undermine bath the congressional rider on embryo rescarch, and the President’s own 1994 directive against using federal funds to create human emtbryos for research purposes. They now say that an entity is an “embryo” only if one can show that it is capable, if implanted in the womb, of becoming a bom. “puman being.” This naxrow definition has no suppart whatsoever in federal law. 2When a law has two parallel clauses, one of which is deliberately written in broader terms than the other, it may not be interpreted to have the same meaning a3 the narrower clause. See Russello v. United States, 464 U.S. 16, 23 (1983), and casea cited therein. The Honorable Donna E. Shalala February 11, 1999 Nevertheless, researchers are already offering to use damaged human embryos in their destructive research, or even to engineer lethal defects in advance into the embryos they create for such research, in order to take advantage of this Administration cover and ignore the congressional and presidential directives altogether. For mote than 20 years, Federal laws and regulations have protected the human embryo and fetus from harmful experimentation at the hands of the Federal government — regardless of * whether the embryo is “perfect” or damaged, wanted or unwanted, intended for ebortian or intended for live birth. This area of law has provided a bulwark against government's misuse and exploitation of human beings in the name of medical progress. It would be a travesty for this Administration to attempt to unravel this accepted ethical standard. We urge you to revicw this issuc carefully, and to put a stop to a proceeding which so - clearly does violence to the meaning and intent of Federal law. Sincerely, Y DICREY, M.C. ° HENRY J. MC. RON PACKARD, M.C, CL), as DAN BURTON, M.C. }\ DUNCAN HUNTER, M.C. W.J. (BILLY) TAUZIN, M.c.V The Honorable Donna E. Shalala February 11, 1999 ROWEEWIS, M.C. PRINS, Adi Wah (Uf "C , fi Cifras RORERT B. ADERHOLT, MC. CHIP PIGRERING, M. [thew 7 JcHEN SHIMEUS, Mee. (¥ OY OQ Full a RON PAUL, M.C. SESSIONS, M.C. P The Honorable Donna E. Shalala February 11, 1999 OT flo. pid M.C. Bespin oo’ M. McINTOSH, M.C. fie _ HELEN CHENOWETH, M.C. JA Of M.C. OB nT. oe g CHRISTOPHER H. SMITII, M.C. CHARLES T. CANADY, M.C. The Honorable Donna E. Shalala February 11, 1999 CHRIS JOHNMI.C. SA HUT + Worle M.C : PHIL ENGLISH, M.C. PAUL RY. TOM TANCREDO, M.C. ROBERT W. a JIM YALENT, M.C. ee eka JACK METCALF, M. . DONALD A. MANZULLO, M.C! Herel DAVE WELDON, M. | or RAY LaH C, TOM LATHAM, M.C. The Honorable Donna E. Shalala February 11, 1999 . Ie, Blut Dus tlyush ROY I M.C. SUE MYRICK, M.C. GR A Ba mi of A CHARLES H. TAYLOR, mck) PHILIP M. CRANE, M.C. (4 ED WHITFIELD, M.C. STEVE CHABOT, M.C. MICHAEL P. FORBES, M.C. MARK E, SOUDER, M.C. TOM DcLAY, MIC. RICHARD H. BAKER, M.C. Mid. Me Ssh fsze oe) MIKE McINTYRE, M.C. VIRGIL H. GOobE, Jr., M.C. The Honorable Donna E. Shalala February 11, 1999 hind ©. (kee? 72 A DAVID D. PHELPS, M.C. LINDSAY 0. GRAHAM, M.C. IKE SKELTON, M.C. — ERNEST J, ISTOOK, Jr., M.C. SOLOMON P. ORTIZ, M.c. 7 1c. wars, Ir., M.C, Republican Conference Chairman