Appeals Court Asked to Reverse Decision Allowing Embryonic Research Funding
by Steven Ertelt
September 15, 2010
Washington, DC (LifeNews.com) — Attorneys for the two adult stem cell research scientists who challenged President Barack Obama’s executive order forcing taxpayers to finance embryonic stem cell research have filed papers asking an appeals court to overturn its decision striking a judge’s temporary injunction preventing funding.
Last week, the U.S. Court of Appeals in Washington put on hold that injunction while Judge Lamberth reviews the lawsuit itself.
Today, attorneys for Advocates International, part of the pro-life legal team with the Alliance Defense Fund and the law firm Gibson, Dunn & Crutcher, filed their 147-page opposition to the government’s 165-page request for an emergency stay of the federal district court’s order preventing funding while the case continues.
The papers oppose what the scientists believe is the Obama’s administration’s "unlawful, unethical and unnecessary federal funding of research involving the destruction of living human embryos."
AI’s General Counsel, Sam Casey, said "the government pending appeal seeks a stay of a preliminary injunction that enjoins them from funding research using human embryonic stem cells — cells derived by destroying living human beings at their embryonic stage of life."
"This funding violates the plain language of the Dickey-Wicker Amendment, in which Congress prohibits federal funding of ‘research in which’ a human embryo ‘is destroyed, discarded, or knowingly subjected to risk of injury or death,’" Casey told LifeNews.com.
He said Judge Lamberth correctly concluded that granting a stay pending appeal, even of short duration, would "flout the will of Congress," and that "the public interest is served by preventing taxpayer funding of research that entails the destruction of human embryos."
Tom Hungar, who has argued this case before the federal district court and the Court of Appeals, pointed out that the appeals court "has already held that adult stem cell researchers like Drs. Sherley and Deisher suffer ‘actual,’ ‘ imminent’ injury from competition with human embryonic stem cell research for scarce federal funding."
He said further proof of the harm the adult stem cell scientists face lies in how the NIH is scurrying to fund more embryonic stem cell research projects before any other court approves the injunction against funding Judge Lamberth granted.
He noted NIH officials said embryonic stem cell research projects should be "given priority" over adult stem cell studies.
Casey also noted that the government has provided "no explanation based on science or the merits of the competing proposals to justify allowing human embryonic stem cell research applications to leapfrog proposals filed by Appellees or any other NIH grant applicants. To the contrary, there is only one explanation for NIH’s actions — an ideological preference for spending as much federal money as practicable on illegal human embryonic stem cell research."
Last Thursday, the plaintiff adult stem cell researchers also asked the federal district court for a summary judgment decision in their favor on the merits of the lawsuit itself.
"We have asked the federal district court to permanently enjoin the government from implementing, applying, or taking any action whatsoever" to fund embryonic stem cell research with tax dollars, Hungar said.
"We have also asked the Court to order the government to immediately inform any NIH grant recipients in possession or control of federal funds granted under the Guidelines for human embryonic stem cell research that any remaining and unspent NIH-granted funds may not be spent on human embryonic stem cell research but must be returned to NIH to fund lawful research," he added.
Although tens of millions in federal embryonic research grant funds have already been spent, the question after the temporary injunction was issued was whether scientists should be spending unused, previously-awarded federal grant money on current embryonic stem cell research projects.
Despite the law and the injunction, NIH issued new guidance for researchers who have already received federal funds for their embryonic stem cell projects saying they can essentially disregard the ruling.
Dr. Theresa Deisher, of AVM Biotechnology and Dr. James L. Sherley, a former MIT professor and scientist, are parties to the lawsuit because they say the Obama order sends funding for their adult stem cell research to scientists working with unproven embryonic stem cells.
"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.
He said his order would not hurt embryonic stem cell researchers because they have the opportunity to find private funds.
In his ruling, Judge Royce Lamberth noted that the imposition of an injunction required that those challenging the government’s funding demonstrate a substantial likelihood of success on the merits for their arguments. Apparently, they succeeded.
"(Embryonic stem cell) research is clearly research in which an embryo is destroyed," Lamberth wrote in the 15-page ruling. "Embryonic stem cell (ESC) research necessarily depends upon the destruction of a human embryo," and he concluded that funding such research violates existing law.
Steven Aden, a lead attorney for the Alliance Defense Fund applauded Lamberth’s decision.
"The American people should not be forced to pay for experiments — prohibited by federal law — that destroy human life," he said. "The court is simply enforcing an existing law passed by Congress that prevents Americans from paying another penny for needless research on human embryos."
A new poll found only 33% of U.S. voters believe that taxpayer money should be spent on embryonic stem cell research.
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