Battle on Obama ESCR Funding Not Over Despite Judge’s Decision

Bioethics   |   David Prentice, Ph.D.   |   Jul 28, 2011   |   10:42AM   |   Washington, DC

U.S. District Judge Royce Lamberth has ruled in the government’s favor on a federal lawsuit challenging current NIH guidelines that allow taxpayer funding of human embryonic stem cell research.

In granting the HHS motion for summary judgement, Judge Lamberth dismissed all the plaintiff’s claims. Judge Lamberth had originally ruled in favor of the plaintiffs, Dr. James Sherley and Dr. Theresa Deisher, in a preliminary injunction in August 2010. That preliminary injunction temporarily shut down federal funding, until an Appeals Court placed a temporary hold on the injunction in September 2010. The Appeals Court eventually vacated the preliminary injunction in April 2010 in a 2-1 split decision. Supplemental briefings were filed in the case in June 2010.

In today’s opinion by Judge Lamberth, he noted that the April split decision by the Appeals Court tied his hands in terms of ruling on the main lawsuit

“At the outset, the Court notes that the D.C. Circuit’s opinion, vacating the award to plaintiffs of a preliminary injunction, constrains this Court on remand.”


“While it may be true that by following the Court of Appeals’ conclusion as to the ambiguity of “research,” this Court has become a grudging partner in a bout of “linguistic jujitsu,” Sherley, 2011 WL 1599685, at *10 (Henderson, J., dissenting), such is life for an antepenultimate court.”

The linguistic parsing is related to the interpretation of the Dickey-Wicker amendment, a rider placed by Congress onto funding bills since 1996, which says in part that no federal taxpayer funds can be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death. . .” The specific meaning of “research in which” has been the focal point of the arguments.

Judge Lamberth does say in another part of the opinion that:

“Research could destroy, discard, or subject to risk embryos without directly involving them.”

This statement agrees with his original decision regarding the merits of the preliminary injunction. Still, he obviously felt constrained by the Appeals Court.

While the decision is disappointing, it is hardly the end of the question or debate.