In the latest twist in an increasingly complex legal struggle, the Department of Justice (DOJ) has appealed a judge's refusal on Tuesday to remove the ban on funding for human embryonic stem cell (hESC) research. Late Wednesday, government lawyers filed a request with the United States Circuit Court of Appeals for the D.C. Circuit for an "immediate administrative stay" of the ban. A decision could come as early as this week.
In his brief declaration Tuesday, Chief Judge Royce Lamberth dismissed the National Institutes of Health's (NIH's) request for a stay of the preliminary injunction. In that order, he reiterated his view that current NIH policy violates the Dickey-Wicker Amendment, which prohibits the federal government from funding research that harms embryos. "Congress remains perfectly free to amend or revise the statute. This Court is not free to do so," he wrote, seeming to imply that it was up to Congress to change the law.
But the Justice Department countered yesterday that Congress has for years both tacitly approved and explicitly endorsed hESC research. "When Congress included the Dickey-Wicker Amendment in the FY 2010 appropriations bill, it was fully aware of the NIH Guidelines," DOJ lawyers note. They point out that an accompanying report specifically declared that the Dickey Amendment "should not be construed to limit Federal support for research involving human embryonic stem cells." If Congress had intended to ban hESC research, the government argues, legislators would have changed the law already.
The appeal also challenges Lamberth's decision on the "balance of harms" that result from the funding ban. In their lawsuit, plaintiffs James Sherley and Theresa Deisher claim that NIH's funding of hESC research diverts funds from other work and harms their chances of winning a grant to study adult stem cells. In granting the injunction, Lamberth accepted this assertion and claimed hESC researchers would not be seriously harmed because they could "obtain private funding for their research." DOJ's appeal notes, however, that Deisher, who has never applied for an NIH grant, claimed in a brief submitted Friday that "private funding is scarce" and that "in order to continue my research, ... I must obtain funding from" NIH. DOJ's appeal wonders why NIH funding is necessary for someone who has never applied for it while "it is not similarly necessary to the research of those scientists who are now cut off altogether."
The United States Circuit Court of Appeals for the D.C. Circuit is the same court that gave Sherley and Deisher legal standing in June. It is dominated by Republican appointees, but some observers believe that is irrelevant because the legal issues do not involve the ethics of research involving embryos, but whether the courts should defer to the way several Administrations have interpreted Dickey-Wicker. The plaintiffs expect to file a petition for summary judgment tomorrow with Lamberth—a request that he decide the case without a trial. One possible scenario is that the appeals court will stay the injunction while Lamberth considers the case.
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