Appeals court overturns ban on human embryonic stem cell research

April 29, 2011 by MassDevice staff

A federal appeals court reversed a lower court's ruling to halt federal funding of research involving human embryonic stem cells, voting 2-1 that the policy does not violate a 1996 law.

In August, Judge Royce Lamberth of the U.S. District Court for the District of Columbia banned the funding policy, potentially derailing scores of projects looking into the causes of diseases like Parkinson's, Alzheimer's and cystic fibrosis. President Barack Obama had sought to deliver stem cell research funding from constraints imposed under the Bush administration, but Lamberth ruled that the policy violated the Dickey-Wicker Amendment, aimed at stopping the destruction of human embryos.

Dickey-Wicker proved to be a sticky wicket for both plaintiffs and defendants when the appeals court issued a temporary stay of the Lamberth ruling.

Obama's policy allowed the use of stem cell lines derived from frozen embryos from fertility treatments that were no longer needed and donated according to stringent ethical guidelines. The plaintiffs in the lawsuit, James Sherley and Theresa Deisher, argued that the Obama policy violated the Dickey-Wicker rules.

The Obama administration appealed the decision to the D.C. appeals bench. In a 2-1 ruling today, that court overturned Lamberth's decision.

"We conclude the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an [embryonic stem cell] from an embryo, it does not prohibit funding a research project in which an [embryonic stem cell] will be used. We therefore vacate the preliminary injunction," Judge Douglas Ginsberg wrote in the majority opinion, according to court documents. "All this is to say the balance of equities tilts against granting a preliminary injunction. That, combined with our conclusion the plaintiffs have not shown they are likely to succeed on the merits, leads us to hold the district court abused its discretion in awarding preliminary injunctive relief.."

In a feisty dissent, Judge Karen LeCraft Henderson took issue with her colleague's reasoning, writing that they have "taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat," performing "linguistic jujitsu."

"I must therefore respectfully dissent," Henderson wrote. "Because derivation of [human embryonic stem cells] necessarily destroys a human embryo or embryos, and because derivation constitutes at least [human embryonic stem cell] research development under the amendment, all [human embryonic stem cell] research is 'research in which a human embryo or embryos are destroyed.' Accordingly, the plaintiffs' challenge to the amendment is likely to succeed because the amendment prohibits the expenditure of federal funds to engage in [human embryonic stem cell] research in all of its sequences."

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