Appeals court splits over embryonic stem cells


The three-judge panel on a federal appeals court considering whether to overturn a ban on federal funding of embryonic stem cell research revealed a split during a hearing yesterday.

President Barack Obama’s administration is appealing a lower court decision banning federal funding of the research. During yesterday’s hearing at the U.S. Court of Appeals for the District of Columbia Circuit, two of the judges questioned the U.S. Justice Dept.’s arguments that the ban would do irreparable harm to the public interest, while a third seemed more sympathetic.

Judge Royce Lamberth of the U.S. District Court for the District of Columbia had ruled that federal funds could not be used for the the research, derailing scores of projects looking into the causes of diseases like Parkinson’s, Alzheimer’s and cystic fibrosis. Obama had sought to restore stem cell research funding from constraints imposed under the Bush administration, but Lamberth ruled that the policy violated the Dickey-Wicker Amendment, aimed at stopping the destruction of human embryos.

But Dickey-Wicker proved to be a sticky wicket for both plaintiffs and defendants when the appeals court issued a temporary stay of the Lamberth ruling.

Obama’s policy allowed the use of stem cell lines derived from frozen embryos from fertility treatments that were no longer needed and donated according to stringent ethical guidelines. The plaintiffs in the lawsuit, James Sherley and Theresa Deisher, argued that the Obama policy violated the Dickey-Wicker rules.

Beth Brinkmann, a Justice Dept. lawyer, argued that the ban would be a waste of the $64 million that’s already been spent on 24 research projects at the National Institutes of Health, according to news reports. Thomas Hungar, an attorney for the plaintiffs, called that argument speculation and maintained that no injury is imminent or irreversible.

Judge Thomas Griffith, a George W. Bush appointee, appeared to be the most skeptical of the government’s argument, saying that the judges are not hearing the case to decide the wisdom of government policy but to judge whether the research violates the Dickey-Wicker amendment.

“All $64 million is completely ruined?” Griffith asked. “They don’t keep lab notebooks?”

There are notes, Brinkmann said, but “it would be a setback for the field. Biological material would be destroyed.”

Judge Brett Kavanaugh, another George W. Bush appointee, called the government’s position “odd” and “internally inconsistent” but said it might be best to defer to the government’s arguments because of the ambiguity of the Dickey-Wicker statute.

Clinton appointee Judge Judith Rogers said that even a temporary halt to the funding could damage public interest represented by the research.

The Justice Dept. previously argued that Congress never intended for the Dickey-Wicker rules to bar all embryonic stem cell research.

"The National Institutes of Health has funded research using embryonic stem cells since 2002, and has not interpreted the Amendment to bar such grants,” according to court documents. "Fully aware of NIH practice, Congress has used the same language in reenacting the funding limitation, and has repeatedly made clear that NIH’s practice is consistent with the statute. Indeed, the relevant Committee Report for the 2010 appropriations bill, enacted after issuance of the current NIH guidelines, noted that the bill ‘should not be construed to limit Federal support for research involving human embryonic stem cells carried out in accordance with policy outlined by the President.’"

That’s because research using stem cell lines already in existence doesn’t involve the destruction of the embryos, the DOJ argued.

"The bar posited by plaintiffs and the district court has never existed," according to the documents. "[R]esearch using embryonic stem cells is not ‘research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.’ Plaintiffs insist that this consistent interpretation reflects a ‘warped reading of the term "research,"’ which should be understood to mean a ‘systematic investigation.’ Referring to scientific research projects as ‘systematic investigations’ adds nothing to plaintiffs’ argument and does not expand research funded by NIH to include antecedent acts that were not funded by NIH."

Furthermore, the Justice Dept. argued, barring federal funding of the research will have a catastrophic impact on medical research.

"Disruption of ongoing research will result in irreparable setbacks and, in many cases, may destroy a project altogether. In contrast, the two plaintiff scientists identify no imminent irreparable injury," according to the department.

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