Scientists Appeal to Stop Obama’s Embryonic Stem Cell Funding

Bioethics   |   Steven Ertelt   |   Sep 20, 2011   |   11:05AM   |   Washington, DC

Two adult stem cell researchers have filed an appeal in their lawsuit seeking to stop President Barack Obama from forcing taxpayers to spend tens of millions of dollars on embryonic stem cell research that destroys human lives.

In July, a federal judge dismissed one of the lawsuits filed against President Barack Obama’s executive order forcing taxpayers to finance embryonic stem cell research that has yet to help any patients.

Last August, U.S. District Judge Royce Lamberth ruled that Obama executive order likely violates that law against federal funding of embryo destruction. But, in April, a federal appeals court ruled Obama can force taxpayers to fund embryonic stem cell research that has never helped any patients.

Responding to that decision, Judge Lamberth dismissed the lawsuit Boston adult stem cell researcher James Shirley filed saying the decision discriminates against researchers who don’t use embryonic stem cells. Lamberth said he is bound to follow the appeals court decision and had no choice but to dismiss the lawsuit.

While again affirming the standing of adult stem cell researchers to challenge these regulations, Judge Lamberth dismissed the case saying that it had no choice under the “mandate rule” but to follow the Court of Appeal’s April 29 ruling that Congress’ ban on human embryonic research was written in a sufficiently “ambiguous” fashion to ban the use of federal funds that risked the “injury or death” of human embryos, but not the use of federal funds to do research on the embryonic stem cells that were derived from such injury or destruction.

Now, Shirley and his co-plaintiff, Dr. Theresa Deisher, have filed a Notice of Appeal in the Sherley et al. v. Sebelius et al. case, and Dr. David Prentice, a pro-adult stem cell research scientist and LifeNews bloger who supports the lawsuit, exlpained more about the latest filing.

“The appeal asks for the court to reverse the District Court’s ruling and stop federal taxpayer funding of human embryonic stem cell research, which relies on the destruction of human embryos. The U.S. District Court had reluctantly ruled against Dr. Sherley and Dr. Deisher in July. The next steps will be for the U.S. Court of Appeals to schedule submission of legal briefs and oral arguments in the case,” he said.

The appeal was filed by the Jubilee Campaign, a Christian law firm, and their co-counsel at the Alliance Defense Fund and Gibson, Dunn & Crutcher. The Obama administration, via the National Institute of Health’s regulations permitted the federal funding of “research in which” human embryos are “knowingly subjected to risk of injury or death.”

Sam Casey, pro-life attorney arguing the case, commented on the appeal, saying, “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. ”

He continued: “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.”

Tom Hungar, another attorney int he case, said, “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.”

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.”

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.

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.

“(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.

“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.”

A second lawsuit also 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.

In 2001 President Bush established a policy allowing research on embryonic stem cell lines created prior to August 9, 2001. On March 9, 2009, President Obama issued an executive order overturning the Bush policy and allowing taxpayer funding for research on embryonic stem cell lines created after 2001.

A Rasmussen Poll released on Friday August 27, 2010, reveals that “only 33% of U.S. voters believe that taxpayer money should be spent on embryonic stem cell research” and 57% of those polled oppose taxpayer funding for controversial stem cell research that requires destruction of human embryos.  The poll demonstrates that while American’s are less likely to believe embryo-destructive research is morally wrong, a majority oppose federal funding for the research.