Onward, Christian Lawyers

Why lawsuits filed by anti-abortion activists may be a blessing in disguise for the California stem cell institute

The number of applications for grants will likely be in the hundreds, and the institute is staffed by deans of medical schools and biotech executives -- that is, the kind of people who don't have time to parse every single application. It's likely, therefore, that working group recommendations will play a huge role in deciding who receives institute money.

The institute plans to self-police the grant reviewers, preventing them from making decisions on grants in which they have a personal, professional, or financial interest of more than $5,000. Yet members are required to disclose financial interests only to the institute, not to the public.

For the most part, the institute is subject to the same public records and open meetings laws as other state agencies, but Proposition 71 gives the oversight committee an out in some cases, including those involving member privacy. "They're so close to a decision-making body, with so much influence over such a large amount of money, we should know what these [grant] reviewers' personal financial interests are," says Jesse Reynolds, a program director at the biomedical advocacy group the Center for Genetics and Society.

The stem cell institute has been in discussions for months with legislators about conflicts of interest and open-government concerns. Hall is confident they're close to a deal, but legislators have little bargaining power. Prop. 71 bars legislative action on the stem cell institute for three years, and even then a 70 percent supermajority is required to pass laws regulating the institute.

The California Institute for Regenerative Medicine has portrayed plaintiffs who are suing the agency as out-of-state-funded, right-wing extremists bent on destroying the institute. To an extent, the contention is true. The California Family Bioethics Council, for example, is an affiliate of Colorado Springs-based evangelical group Focus on the Family. Both groups make clear that their concern about stem cell research focuses, first and foremost, on ethics and the so-called right to life.

Those motivations don't take away from the fact that they make some good financial-management points.

The criticism with the most weight, common to all three suits, rests on Article XVI, Section 3, of the state constitution, which states that money from the California treasury can only go to institutions under the exclusive management and control of the state. The stem cell institute and its oversight committee, the argument goes, don't qualify as state control. The Legislature has no power over the institute's budget, and no control over its policies for the next three years. Oversight committee working group members, who have considerable power over where the money goes, are appointed to six-year terms and can't be hired or fired by voters or the Legislature.

The pro-choice groups criticizing the stem cell institute on good governance and accountability grounds have stayed out of the courtroom for several reasons: Some don't have the money to sue; some don't have the legal expertise; most don't want to ally with an anti-abortion group.

All the same, they're cheering from the sidelines for their conservative counterparts.

"It's a serious constitutional question," says Berkeley public interest lawyer Charles Halpern. "When you look closely at ICOC procedures, it's hard to think of it as an organization under the exclusive management and control of the state of California. CIRM is like a free actor."

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