By Paul Basken, of the The Chronicle of Higher Education
The Obama administration on Tuesday won another round in its legal battle to permit federally financed embryonic-stem-cell research, as a federal appeals panel affirmed its earlier decision to lift a temporary injunction while litigation on the issue continues.
The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit has now ruled twice against enforcing the injunction, which was issued on August 23 by a lower-court judge in a case brought by researchers who raise ethical objections to work involving human embryos.
The decision allows the National Institutes of Health to continue its work on financing more than $70-million worth of research using embryonic stem cells, and avoids what the NIH has described as a potential disaster for a promising approach to attacking a range of ailments, including cancers, diabetes, heart disease, and paralysis.
The appeals court "understood the serious harm that the preliminary injunction would cause," said Anthony J. Mazzaschi, senior director for scientific affairs at the Association of American Medical Colleges.
The injunction was issued by Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia in a case brought by two private researchers, James L. Sherley and Theresa A. Deisher.
Dr. Sherley and Ms. Deisher work with stem cells derived directly from adult patients rather than from embryos. In their lawsuit, they argue that President Obama's easing of restrictions imposed by his predecessor, George W. Bush, on federal support for embryonic-stem-cell research has unfairly deprived them of federal money for their own studies by increasing the competition for NIH funds.
The Justice Department, arguing the case on behalf of the Obama administration, says the two plaintiffs have suffered no real harm because the NIH provides far more money for work with adult stem cells than it does for work with embryonic stem cells. Dr. Sherley has already received $425,500 in NIH grant money, while Ms. Deisher has never even applied, the department said in a filing.
Obscure Provision in Federal Law
That lawsuit is continuing, but Judge Lamberth issued his injunction after concluding that the Obama administration's policy appeared to violate a longstanding provision in federal law that bans the use of federal money for research that involves the creation or destruction of human embryos. Embryos are destroyed when embryonic stem cells are obtained from them.
In a separate court filing this week, Story C. Landis, director of the NIH's National Institute of Neurological Disorders and Stroke, said that 73 of the 75 embryonic-stem-cell lines approved so far by the NIH were from embryos donated before the NIH guidelines were put into effect, in July 2009, suggesting that any possible violation of the older provision, known as the Dickey-Wicker Amendment, had already largely occurred under the terms of the Bush administration's policy.
The appeals court temporarily lifted the injunction this month, but gave the parties more time to file briefs before issuing a more-permanent order. That order came on Tuesday, and will remain in place while the appellate panel carries out a more-detailed review of the arguments. That means the federal financing of embryonic-stem-cell research can continue while the case before Judge Lamberth proceeds.
A trial of the lawsuit could last several months. Each side, however, have asked Judge Lamberth to end the matter by issuing a summary judgment in its favor. Both sides contend that the judge already has enough undisputed facts to make a final ruling. Either way, the federal appeals court and possibly the Supreme Court could still be months away from delivering a final resolution to the argument.
The NIH director, Francis S. Collins, told reporters in August that the case threatens 22 grants worth $54-million that are awaiting annual renewal, and an additional $15-million to $20-million worth of new projects. His chief spokesman, John T. Burklow, said on Tuesday he couldn't comment on the latest court ruling because of "pending legal actions."
Sen. Tom Harkin, a Democrat of Iowa who led a Senate hearing on the matter on September 16, issued a written statement on Tuesday calling the appellate panel's ruling a sign that "the tide is turning in our favor." But Mr. Harkin made no comment in his statement about whether he would continue to press for legislative action that would end any ambiguity about Congress's intent with the Dickey-Wicker Amendment.
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