Court Victory For Supporters Of Federally Funded Embryonic Stem Cell Research

April 29, 2011 -- In a victory for the Obama administration, a federal appeals court has set aside a lower-court ruling that would have blocked the use of federal funds for embryonic stem cell research.

A divided three-judge panel of the Court of Appeals for the District of Columbia found that the plaintiffs in the case, who argued that NIH's guidelines for human embryonic stem cell research violate federal law, were not likely to succeed in their lawsuit.

The court found that the law--the Dickey-Wicker Amendment enacted in 1996--is "ambiguous" and that the NIH has "reasonably concluded" that while the law bans federal funding for the destructive act of deriving cells from an embryo "it does not prohibit funding a research project in which an hESC will be used."

The Obama administration contends that no embryos are actually destroyed with federal funds and that the monies only pay for research conducted under strict ethical guidelines on derived stem cells.

"Today's ruling is a victory for our scientists and patients around the world who stand to benefit from the groundbreaking medical research they're pursuing," said Nick Papas, a spokesman for the White House.

The lsuit was brought by Drs. James Sherley and Theresa Deisher, scientists who use only adult stem cells in their research and who say that the funding for hESC would compete with funding necessary to complete their research.Last August, District Court Judge Royce Lamberth stunned the medical community when he issued a preliminary injunction against the funding, ruling it violated Dickey-Wicker.

The preliminary injunction was stayed pending appeal and today's decision vacates his ruling. The court said that Lamberth's injunction would have precluded "the NIH from funding new hESC projects it has or would have deemed meritorious, thereby inevitably denying other scientists funds they would have received."

The Court also said, "Even more problematic, the injunction would bar further disbursements to hESC researchers who have already begun multi-year projects in reliance upon a grant from the NIH; their investments in project planning would be a loss, their expenditures for equipment a waste, and their staffs out of a job."

The appeals court panel rendering today's opinion were all nominated to the bench by Republican presidents.Judge Douglas H. Ginsburg wrote the decision and was joined by Thomas B. Griffith.

But Judge Karen L. Henderson dissented, writing that the majority had engaged in "linguistic jujitsu."

"Because derivation of hESCs necessarily destroys a human embryo or embryos," she wrote, " and because derivation constitutes at least hESC research development under the Amendment, all hESC research is 'research in which a human embryo or embryos are destroyed.' "

Sam Casey, an attorney representing Sherley and Deisher said he was "disappointed but not surprised" by the ruling. He says he is considering whether to appeal the decision to the full court.