Appeals Court Allows Obama to Fund Embryonic Stem Cell Research During Suit

Bioethics   |   Steven Ertelt   |   Sep 9, 2010   |   9:00AM   |   WASHINGTON, DC

Appeals Court Allows Obama to Fund Embryonic Stem Cell Research During Suit

by Steven Ertelt Editor
September 9
, 2010

Washington, DC ( — A federal appeals court overturned the decision of a federal judge to keep an injunction in place disallowing the Obama administration to pay for embryonic stem cell research with taxpayer dollars while a lawsuit against the executive order President Barack Obama issued proceeds.

U.S. district court Judge Royce Lamberth granted a preliminary injunction against the funding.

It came in response to a lawsuit filed by stem cell researchers who said the Obama executive order and subsequent funding from the National Institutes of Health violated the Dickey amendment, the federal law prohibiting funding the destruction of human embryos via research.

Obama officials appealed Judge Lamberth’s decision and asked to put the injunction on hold so taxpayer dollars can continue to flow to embryonic stem cell research projects while the lawsuit against the order moves ahead.

Today, the U.S. Court of Appeals in Washington put on hold that injunction while Judge Lamberth reviews the lawsuit itself.

“The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the emergency motion for stay and should not be construed in any way as a ruling on the merits of that motion,” the appeals court wrote in its decision.

The parties involved in bringing the lawsuit can file a response to the appeals court’s decision to lift the injunction by September 14 and then the Obama administration can file its response to the plaintiffs by September 20.

Dr. James L. Sherley, a former member of the MIT faculty now currently working as a senior scientist at the Boston Biomedical Research Institute and Dr. Theresa Deisher, the founder of AVM Biotechnology were the two scientists behind the lawsuit.

In their opposition, the scientists notified the court that they intend to file a motion for summary judgment, and Judge Lamberth’s ruling on the case itself could be issued as early as tomorrow.

"(Embryonic stem cell) research is clearly research in which an embryo is destroyed," Lamberth wrote in the 15-page ruling.

The Court noted, "Embryonic stem cell (ESC) research necessarily depends upon the destruction of a human embryo," and concluded that funding such research violates existing law.

He said his order would not hurt embryonic stem cell researchers because they have the opportunity to find private funds.

"There is no after-the-fact remedy for this injury because the Court cannot compensate plaintiffs for their lost opportunity to receive funds," Lamberth wrote.

Since 1996, in what has been popularly known as its Dickey-Wicker Amendment to each HHS Appropriations Bill, Congress has expressly banned NIH from funding research in which human embryos "are destroyed, discarded, or knowingly subjected to risk of injury or death."

"Congress has forbidden federal funding of research that entails the destruction of human embryos, and rather than seek a stay the NIH needs to start complying with the law," Thomas Hungar, lead trial counsel for the scientists and the attorney who argued the case before Judge Lamberth, said.

The scientists contend the executive order and NIH guidelines implementing it violate the congressional ban because they "necessarily condition funding on the destruction of human embryos."

They also allege the NIH guidelines were invalidly implemented, because the decision to fund human embryonic stem cell research was made without the proper procedures required by law and without properly considering the more effective and less ethically problematic forms of adult and induced pluripotent stem cell research.

Deisher, one of the scientists, says NIH director Francis Collins has issued a declaration paper to the court that misleads about the science behind the debate between adult and embryonic stem cells.

She said Collins’ declaration "contains numerous factual assertions and characterizations regarding the nature of and prospects for adult stem research, human embryonic stem cell research, and induced pluripotent stem cell research that are directly contrary to the evidence in the administrative record, and that do not accurately reflect the published literature on those subjects."

Embryonic stem cell research has yet to help a single patient, unlike adult stem cell research — which has helped patients with more than 100 diseases and medical conditions and which President Bush supported with hundreds of millions in federal funding.

The use of embryonic stem cells has not worked in animals because the cells, once injected, cause tumors and are rejected by the immune system. As a result, embryonic stem cells can’t be safely used in human trials until those problems are corrected.

The case is Sherley v. Sebelius, 10-5287, U.S. Court of Appeals for the District of Columbia (Washington).


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