Supreme Court Tosses Suit to Stop Obama Embryonic Research Funding

Bioethics   |   Steven Ertelt   |   Jan 7, 2013   |   12:00PM   |   Washington, DC

The Supreme Court today decided against hearing a case that involves a lawsuit filed by stem cell researchers challenging President Barack Obama’s decision to force taxpayers to fund embryonic stem cell research.

Previously, the U.S. Circuit Court of Appeals for the District of Columbia upheld a decision throwing out a lawsuit challenging the funding, which President George W. Bush stopped and Obama allowed just months after entering office. The bringers of the lawsuit argued Obama’s executive order forcing taxpayer funding violated the 1996 Dickey-Wicker law that prohibits taxpayer of any scientific research that results in the destruction of human embryos, unborn children at their earliest days of life.

A three-judge appeals court panel unanimously agreed with the lower court judge, saying “Dickey-Wicker permits federal funding of research projects that utilize already-derived” embryonic stem cells because no “human embryo or embryos are destroyed” in such projects.

Today, the high court refused to hear the appeal of that appellate court decision.

Alliance Defending Freedom Senior Counsel Steven Aden told LifeNews he was disappointed by the decision Supreme Court’s decision not to review Sherley v. Sebelius.

“Americans should not be forced to pay for experiments that destroy human life, have produced no real-world treatments, and violate federal law–especially in burdened fiscal times like these. Congress designed a law to ensure that Americans don’t pay any more precious taxpayer dollars for needless research made irrelevant by adult stem cell and other research. That law is clear, and we had hoped the U.S. Supreme Court would uphold its clear intent,” he said.

Alliance Defending Freedom attorneys together with Samuel B. Casey of the Jubilee Campaign’s Law of Life Project and Tom Hungar of Gibson, Dunn & Crutcher, LLP, litigated the case against the Obama administration.

David Prentice, a Ph.D. scientist and former professor at Indiana State University, now with the Family Research Council, also commented.

The Supreme Court has denied the Cert petition in the Sherley v Sebelius case, the lawsuit regarding federal taxpayer funding of human embryonic stem cell research. The case has revolved around the prohibition by Congress of funds for “research in which an embryo is destroyed, discarded or injured”, a phrase in the Dickey-Wicker amendment enacted by Congress every year since 1996. One key question in the suit was whether federal funds could be used for research on human embryonic stem cells already in culture, after derivation using other sources of funds, or whether “research” included the derivation step; derivation is a necessary step to begin the research by first isolating and growing the embryonic stem cells, and requires destruction of a young human embryo. In the timeline of the lawsuit and previous decisions, the Appellate court had parsed the phrase in question and divided out the necessary derivation of the embryonic stem cells from subsequent experiments.

It’s disappointing that the Court has declined to review the case and give their answer on this question and other questions raised in the lawsuit. It’s also very likely that a great deal more human embryos will be destroyed in this research now. This is sad not only given the loss of vulnerable young human life, but also because it will likely delay the real lifesaving research with adult stem cells.

In August 2010, U.S. District Judge Royce Lamberth ruled that Obama executive order likely violates that law against federal funding of embryo destruction. But, in April 2011, 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.

After the appeals court ruling, Dr. David Prentice, Family Research Council’s Senior Fellow for Life Sciences, made the following comments to LifeNews:

“We are disappointed that the Appeals Court panel did not agree that the Obama administration is violating the 1996 Dickey-Wicker amendment by providing taxpayer funding for human embryonic stem cell research. Embryonic stem cell research relies on the destruction of young human embryos, and that destruction is integral to the research.”

“There would be no embryonic stem cells available for federal funding without first harming and destroying a young human embryo, an act that is prohibited by the Dickey-Wicker language which is passed annually. A plain reading of Dickey-Wicker would eliminate all taxpayer funds for embryonic stem cell research. Federal funding of embryonic stem cell research is a tragic waste of lives as well as taxpayer money, since despite the promises made to gain the federal funding, there is not a single example of a successful treatment. Only adult stem cells have successfully treated any patient, now helping thousands of people for dozens of conditions.”

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.

Previously, bioethicist and attorney Wesley J. Smith said it “is not Lamberth’s fault” that he had to throw out the lawsuit.

“The politics of this were always too white hot in our increasingly less principled country to permit a literal following of the clear purpose of Dickey/Wicker,” Smith added. “The next big fight in this field will be over federally funding human cloning research when, and if, that technology can be  performed in humans.  Until then, expect the status quo to continue.”

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.

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 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.

A Rasmussen Poll released on Friday August 27, 2010, revealed 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 demonstrated that while American’s are less likely to believe embryo-destructive research is morally wrong, a majority oppose federal funding for the research.