Two scientists who have fought a 3-year, losing court battle to block federal funding for human embryonic stem cell (hESC) research have now taken their case to the U.S. Supreme Court.
Yesterday, attorneys for the plaintiffs in Sherley v. Sebelius filed what's known as a writ of certiorari with the land's highest court. In their 36-page petition, they ask the court to consider two questions that were raised when a federal appeals court ruled against them in August. One is whether the appeals court should have relied on its own earlier, split decision finding that federally funded hESC research doesn't violate the Dickey-Wicker Amendment. The law bans federal funds for research that destroys human embryos.
The second question is whether the appeals court should have agreed that the National Institutes of Health (NIH) could ignore thousands of comments opposing hESC research when the agency issued guidelines in July 2009 implementing an executive order from President Barack Obama lifting Bush-era restrictions on the research.
"We're at the end game here, hopefully, and we'll see if the court accept or rejects" the petition, says Tony Mazzaschi of the Association of American Medical Colleges in Washington, D.C., which has supported NIH in the case. He's skeptical that the justices will agree to hear the case: The plaintiffs raise "awfully narrow, academic-type legal questions. [The Supreme Court is] not being asked to judge Dickey-Wicker." (Moreover, the Supreme Court usually only agrees to hear less than 1.4% of petitions each year.) The court will likely decide whether to take the case before its term ends in June.
In any event, the petition may be moot if Republican presidential contender Mitt Romney wins the election next month and issues his own executive order that could potentially restrict funding for hESC research, Mazzaschi points out.
*Correction 2:18 p.m., 12 October: A quote from Tony Mazzaschi has been corrected to reflect the types of questions that the plaintiffs raise.