Appeals Court Upholds Obama Stem Cell Research Order in Second Lawsuit

Bioethics   |   Steven Ertelt   |   Jan 28, 2011   |   8:14PM   |   Washington, DC

The executive order President Barack Obama issued to force taxpayers to finance embryonic stem cell research has been upheld in a decision a federal appeals court issued regarding one of the two lawsuits that have been filed against it.

The National Organization for Embryonic Law, Nightlight Christian Adoptions and eight parents of children adopted as frozen embryos filed one of two lawsuits the executive order faces and the suit is headed by frozen human embryo Mary Scott Doe as representative of a class of unborn children who would be killed in the research the order funds.

A Maryland federal judge has also ready tossed the lawsuit and, this week, the 4th Circuit Court of Appeals upheld that decision. Judge Harvie Wilkinson, writing for the three-judge panel, called the argument “insufficient” because the plaintiffs could not show that all of the frozen embryos would be harmed by the research.

“The complaint does not identify any of the named plaintiff’s particularized characteristics,” the ruling says. “Instead, it leaves us only with questions such as whether the embryo will ever be used for research and whether that research will be funded by the National Institutes of Health..

“We have no idea under what terms the named plaintiff embryo was donated or stored or what its status even is,” Wilkinson added. “In the absence of answers, the chosen appellation of Mary Scott Doe could equally designate any member of an amorphous frozen embryo class.”

Judge Wilkinson said the panel was also not persuaded by the argument that forcing taxpayers to finance embryonic stem cell research would prompt more women to undergo the painful egg extraction process to donate their eggs for research. He said “the complaint provides no basis to conclude that the named plaintiff in particular will be part of the subset that suffers any injury at all, much less an injury due to the challenged government policy.”

“We do not doubt for a moment the sincerity of those who oppose, as well as those who support, the revised NIH funding guidelines,” Wilkinson wrote, referring to the National Institutes of Health. “But depth of conviction, while admirable, cannot serve to displace the courts’ own deep attachment to the law.”

The pro-life advocates have sued the Department of Health and Human Services (HHS) and the National Institutes of Health (NIH) on behalf of unborn children who would be destroyed in the research funded by the departments. They want to stop the expected $92 million that could be funneled from taxpayer funds to embryonic stem cell research, which has never helped human patients and has yielded significant problems in studies with animals.

There are two suits and both make similar cases that the Obama order to force taxpayers to fund embryonic stem cell research violates the Dickey-Wicker Amendment, a federal law that prohibits federal funding of scientific studies that destroy human life.

Specifically, the 1995 law stops tax-funding of “(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.”

The lawsuit also alleges that the NIH violated administrative rules when it wrote the guidelines for implementing Obama’s decision after allowing only 34 days of public comment — instead of the customary 60 days — and publicly admitted ignoring 30,000 of the 49,000 public comments from people who opposed the funding.

The other suit received a hearing before the U.S. Court of Appeals for the District of Columbia in December in the appeal of a lower court ruling related to the lawsuit brought by stem cell research scientists.

In September, 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.

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.”

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.

A new poll found only 33% of U.S. voters believe that taxpayer money should be spent on embryonic stem cell research.