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

Bioethics   |   Steven Ertelt   |   Sep 28, 2010   |   9:00AM   |   WASHINGTON, DC

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

by Steven Ertelt Editor
September 28
, 2010

Washington, DC ( — A federal appeals court has lifted the injunction a federal judge put in place stopping President Barack Obama from forcing taxpayers to finance unproven embryonic stem cell research while scientists continue with their lawsuit against the funding.

The U.S. Court of Appeals for the D.C. Circuit lifted the injunction Judge Royce Lamberth of the U.S. District Court in Washington put in place that stopped taxpayer funding during the duration of the lawsuit.

The Obama administration appealed Lamberth’s decision and the three judge panel of the appeals court issued its decision today.

During Monday’s hearing, Justice Department attorney Beth Brinkmann argued that the injunction would result in "irreparable harm" to the Obama administration’s efforts to funds scientists engaging in research that has never helped any patients because of massive problems with injecting the embryonic stem cells in animals.

Unlike its embryonic cousin, adult stem cell research does not have the same tumor-causing or immune system-rejecting issues and has been used already to help patients dealing with more than 100 diseases and medical conditions.

"Upon consideration of the government’s emergency motion to stay preliminary injunction pending appeal and for immediate administrative stay, the opposition thereto, the reply, and the argument by counsel, it is ORDERED that the administrative stay entered September 9, 2010, be dissolved," the court ruled.

"It is FURTHER ORDERED that the motion for stay pending appeal of the preliminary injunction entered on August 23, 2010, be granted. Appellants have satisfied the standards required for a stay pending appeal," the appellate court added.

Judges Judith Rogers, Thomas Griffith and Brett Kavanaugh heard oral argument yesterday. The appeals court originally allowed both sides 15 minutes to make their case, but the Associated Press indicates the judges wound up questioning the attorneys for more than an hour.

Brinkmann told the appeals court judges the injunction would hurt scientists’ embryonic stem cell research, even though the research has never helped human beings and suffers from massive problems when used to treat animals. The rulings only involve scientists working with federal funds, not private dollars.

Judge Thomas Griffith appeared skeptical about Brinkmann’s claims that the entire work $64 million has funded would go to waste.

"All $64 million is completely ruined?" Griffith asked. "They don’t keep lab notebooks?"

AP indicates Brinkmann responded, "it would be a setback for the field. Biological material would be destroyed."

Thomas Hungar, an attorney for the scientists, argued that Judge Lamberth was right when he said the injunction would not hurt the work of scientists because they could obtain private funding.

He said the Court of Appeals in this case "has already held that adult stem cell researchers like Drs. Sherley and Deisher suffer ‘actual,’ ‘imminent’ injury from competition with embryonic stem cell research for scare federal funding."

To Hungar, the adult stem cell research scientists would be hurt if the injunction were lifted because NIH is moving aggressively to send tends of millions more in federal funds to embryonic scientists.

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.

Judge Lamberth’s district court decision said the injunction should be put in place because federal law prohibits the government from funding research in which human embryos are destroyed. Unborn children days after conception must be destroyed for scientists to obtain their embryonic stem cells for research. Adult stem cell use does not require the destruction of human life.

Now, Lamberth will issue a ruling on the lawsuit itself, which adult stem cell research scientists filed against the executive order President Barack Obama issued forcing taxpayers to fund embryonic stem cell research.

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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