Government Asks District Judge to Dismiss Stem Cell Suit

Jocelyn is a staff writer for Science magazine.

The legal wrangling over stem cell research continues. Yesterday, the same day an appeals court questioned lawyers about the case, the government filed documents in a lower court arguing that the lawsuit brought by two researchers who oppose human embryonic stem cell (hESC) research should be thrown out.

To recap: On 23 August, U.S. District Judge Royce Lamberth issued a preliminary injunction freezing National Institutes of Health (NIH) support for hESC research because it likely violates the Dickey-Wicker law banning federal funds for research that harms embryos. After an appeals court temporarily lifted the freeze, the plaintiffs, two researchers who study adult stem cells, filed a "motion for summary judgment" with Lamberth. This means they argued that the facts aren't in dispute and the judge can rule quickly without a trial on issuing a permanent injunction.

Last night the Department of Justice (DOJ) submitted a 21-page response to the plaintiffs' statement of facts supporting their motion, arguing that many of the facts are incorrect or not relevant to the case. For example, DOJ lawyers dispute the suggestion that hESC and adult stem cell research proposals compete directly for funding, and they say the plaintiffs' statements about the status of adult stem cell research are irrelevant.

Justice lawyers also filed their own 54-page motion for summary judgment asking the court to rule in their favor. It repeats the argument that NIH's interpretation of Dickey-Wicker is valid because Congress and three presidential administrations have supported it. The government also disputes the plaintiff's claim that NIH didn't follow proper administrative procedures when it issued draft guidelines for hESC research because the agency ignored many of the 49,000 comments it received. NIH asked for comments on how to implement President Barack Obama's March 2009 executive order expanding hESC research, not whether to fund hESC research, according to a declaration from Story Landis, chair of NIH's stem cell task force. (As an example, NIH received more than 10,000 nearly identical comments at the urging of two groups opposed to hESC research. NIH deemed these irrelevant, Landis states.)

Even if the court agrees with the plaintiffs' arguments, it should hand the guidelines back to NIH to revise them, not issue a permanent injunction, the government concludes.

The plaintiffs now have until 7 October to respond, then there is another deadline for documents from both sides later in October, although Lamberth could rule before then. For the moment, all eyes are on the appeals court, which could rule soon on whether to extend the current stay lifting the preliminary injunction—essentially, whether hESC research can continue while the case moves through the courts or must again grind to a halt.

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