Scientists File Briefs in Lawsuit to Stop Obama’s ESCR Funding

Bioethics   David Prentice, Ph.D.   Jun 27, 2011   |   11:40AM    Washington, DC

Adult stem cell researchers James Sherley and Theresa Deisher have filed their brief asking federal court to grant their pending motion for summary judgment and finally ban federal funding of illegal, unnecessary, and unethical “research in which” human embryos are “knowingly subjected to risk of injury or death” in violation of federal law.

Both sides in the lawsuit agreed to supplemental briefs after a U.S. Appeals Court panel overturned the preliminary injunction in the case.

Brief filed by attorneys for the plaintiffs, adult stem cell researchers James Sherley and Theresa Deisher.

Dr. Sherley has also filed a supporting declaration demonstrating that the NIH Guidelines are creating a virtual certainty that more human embryos will be destroyed.

Brief filed by attorneys for the defendants, HHS Secretary Kathleen Sebelius, NIH Director Francis Collins, HHS and NIH.

Nature describes the federal lawsuit over US government funding for human embryonic stem cell research as the “landmark lawsuit challenging the legality of government support for the controversial research.”

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A news release from pro-life attorney Samuel Casey provides more details on the new briefs:

On behalf of the adult stem researchers it represents, the Jubilee Campaign’s Law of Life Project and their co-counsel at the Alliance Defense Fund and Gibson, Dunn & Crutcher, following a second remand from the United States Court of Appeals, filed its “supplemental brief” asking the United States District Court to provide summary judgment on each of their clients’ claims based on the National Institute of Health’s clear violation of two separate laws: (1) the Dickey-Wicker Amendment that bars federal funding of any “research in which” human embryos are “knowingly subjected to risk of injury or death;” and, (2) the Administrative Procedure Act that prohibits a government agency, from patently ignoring or prejudging public comments submitted in opposition to unlawful agency action, like NIH has been and is doing in this case.

The case began almost two years ago when, in response to President Obama’s March 9, 2009 Executive Order, the NIH published and noticed for public comment regulatory guidelines allowing federal funds to be used for the first time for the creation of new stem cell lines (hESC) requiring the destruction of living human embryos. Before these guidelines became law the Law of Life’s General Counsel, Sam Casey, with his co-counsel Tom Hungar of Gibson, Dunn and Crutcher, representing the DO NO HARM Coalition, formally filed over 140 pages of legal and scientific comments objecting to what many people saw as the grossly irresponsible use of public funds to support research which is illegal, unnecessary, and an unethical breach of long-standing Congressionally-acknowledged principles barring such human subject experimentation. When NIH patently ignored and prejudged these comments and approximately 30,000 other comments and commentators opposing federal funding of destructive human embryonic stem cell research, the on-going legal action was required.

LOLP’s General Counsel, Sam Casey, who has been arguing the issues in this case for more than decade said: “Each time grant-awarding officials and federally funded scientists support or engage in hESC research, living human embryos are ‘knowingly subjected to risk of injury or death,’ in violation of the federal law known as the Dickey-Wicker Amendment. The federally sponsored hESC research that the Guidelines support inevitably creates a substantial risk — indeed, a virtual certainty — that more human embryos will be destroyed in order to derive more hESCs for research purposes. Indeed, Dr. James Sherley, one of the plaintiffs in the case, today filed a supporting declaration demonstrating that the NIH Guidelines are in fact currently having just such a destructive impact in violation of the federal prohibition against such conduct set forth in the Dickey-Wicker Amendment that was again reauthorized by Congress at the beginning of this year.”

“The NIH chose to ignore both our DO NO HARM et. al. Comments, as well as approximately 30,000 other comments — 60% of those received in the mandatory guideline review process — which raised serious and highly relevant questions about the ethics and scientific merits of hESC research,” said Gibson, Dunn and Crutcher partner, Tom Hungar, Mr. Casey’s cocounsel. Hungar added, “the challenged NIH Guidelines clearly violate the Dickey-Wicker Amendment, but NIH’s decision to turn a blind eye to tens of thousands of comments demonstrating that hESC research can’t be justified even under the government’s own criteria means that the NIH’s guidelines were promulgated in violation of the Administrative Procedure Act and must be struck down for that reason as well.”

After the NIH took any real consideration of the merits of hESC research “off the table” during its pre-ordained review process, effectively pushing a very specific and controversial policy despite laws designed to prevent exactly that action, the Law of Life Project and its co-counsel were left with no recourse but direct litigation, and the hope that the judicial system will ultimately rectify the injustice the NIH continues to unlawfully perpetrate at the taxpayers’ expense. Since that time, after going to the Court of Appeals the first time in 2009 to establish their clients’ “standing” to assert their claims, and a second time in 2010 unsuccessfully defending a preliminary injunction entered by the District Court on the strength of only the first of their three claims for relief, Casey says, “the Law of Life Project is now right back where it wants to be — respectfully asking the United States District Court on all the grounds filed in its pending motion for summary judgment (and in its opposition to the government’s claims) to bring an end to this illegal, unnecessary, and unethical misuse of federal taxpayer dollars.”