Lawsuit on Obama’s Embryonic Stem Cell Research Funding Continues

Bioethics   Steven Ertelt   May 19, 2011   |   11:31AM    Washington, DC

The pro-life side in the lawsuit against the executive order President Barack Obama issued forcing taxpayers to fund embryonic stem cell research that involves the destruction of human life has filed a new motion in the case.

David Prentice, a top scientist with the Family Research Council explains, “In the latest update regarding Sherley et al. v. Sebelius et al., the lawsuit challenging federal taxpayer funding of human embryonic stem cell research, a Motion was filed on May 18, 2011, to allow both sides to file supplemental briefs with the U.S. District Court.”

“This motion to provide additional information to the Court was agreed upon by both sides. A similar previous motion filed on May 9 was opposed by the Department of Justice,” Prentice continues. “The motions follow the April 29 decision by the Appeals Court to vacate the preliminary injunction issued by U.S. District Judge Lamberth in August 2010. While the Appeals Court ruling maintained the status quo regarding the flow of federal taxpayer funds for embryonic stem cell research, there are still a number of issues to be resolved, awaiting the decision of Judge Lamberth.”

“If the new motion is approved, both sides would be allowed to provide supplemental information in briefs due on or before June 24, 2011, and limited to 10 pages,” he said.

UPDATE: According to Prentice, “U.S. District Judge Royce Lamberth has granted the request for supplemental briefs to be filed in the Sherley v. Sebelius case. Each side’s 10-page supplemental brief will be due on or before June 24, 2011.”

Just months after he took over the White House, Obama overturned the protections President George W. Bush put into place that prevented taxpayer funding of new embryonic stem cell research but pushed millions of dollars into research associated with adult stem cells, which have already helped patients with more than 100 diseases and medical conditions. Bush also pumped money into finding embryonic stem cell research alternatives that don’t involve destroying human embryos for their stem cells, and Obama overturned that executive order as well.

In lawsuits challenging the Obama executive order, plaintiffs contended the order violated the 1996 law known as the Dickey-Wicker amendment that prohibits the federal government from using taxpayer finds to destroy human embryos in scientific research. Last August, U.S. District Judge Royce Lamberth ruled that Obama executive order likely violates that law against federal funding of embryo destruction.

James Sherley of the Boston Biomedical Research Institute and Theresa Deisher of AVM Biotechnology had also argued that Obama’s order discriminates against adult stem cell researchers who are already helping patients now as opposed to the embryonic stem cell scientists who have yet to be able to use embryonic stem cells in patients because of problems in animals such as immune system rejection issues and the embryonic cells growing tumors after injection.

But a three judge panel of the U.S. court of appeals in Washington overturned a judge’s order and a 2-1 majority said the law was not violated.

In his initial ruling, 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

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.

“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.

The lawsuit, filed in August 2009, alleges that the guidelines governing destructive embryonic stem cell research implemented by the Obama administration in July “are contrary to law, were promulgated without observing the procedures required by law.”

The lawsuit says the guidelines violate the Dickey-Wicker appropriations provision regarding embryo research that prohibits federal funding of creating human embryos by any method, explicitly including human cloning, or any “research in which” human embryos are harmed in any way.

Thomas G. Hungar, one of the lawyers for the plaintiffs, which includes the Alliance Defense Fund and the Christian Medical Association, said in 2009 when the lawsuit was filed, “the language of the [Dickey-Wicker] statute is clear” that it “bans public funding for any research that leads to the destruction of human embryos.”

“NIH’s attempt to avoid Congress’s command by funding everything but the act of ‘harvesting’ is pure sophistry. The guidelines will result in the destruction of human embryos and are unlawful, unethical, and unnecessary,” he told LifeNews.com at the time.

Sam Casey, General Counsel of Advocates International’s Law of Life Project, a public interest legal project involved in the case, pointed out that NIH officials have admitted they violated the public comment process by ignoring the majority of comments coming from pro-life advocates opposed to destroying unborn children for their stem cells.

“The majority of the almost 50,000 comments that the NIH received were opposed to funding this research, and by its own admission, NIH totally ignored these comments,” he said. “The so-called spare human embryos being stored in IVF clinics around the United States are not ‘in excess of need,’ as the NIH in its guidelines callously assert. They are human beings in need of biological or adoptive parents.”

The NIH rules say fertility clinics need only provide couples with the options available at that clinic, which likely do not include the possibility of adopting the human embryo to a couple wanting to allow the baby to grow to birth.

The guidelines also suggest that IVF doctors and human embryonic stem cell research scientists “should be” different people, but there is no requirement. That could result in the purposeful creation and destruction of human life rather than merely using “leftover” human embryos.