The three-judge panel on a federal appeals court considering whether to overturn a ban on federal funding of embryonic stem cell research lifted an injunction barring the funding, despite an apparent split among the judges revealed during a Sept. 27 hearing.
President Barack Obama’s administration is appealing a lower court decision banning federal funding of the research. During the 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 to nobody injured and nothing 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.
But after considering the matter, the panel decided to stay Lamberth’s injunction and put the appeal on the fast track.
“Appellants have satisfied the standards required for a stay pending appeal,” according to court documents. “It is further ordered, on the court’s own motion, that consideration of this appeal be expedited.”