Today, government lawyers asked an appeals court to suspend a lower court ruling that froze federally funded research on human embryonic stem cells
(hESCs) last month. In a rapid-fire discussion that lasted more than an hour, a three-judge panel had tough questions for both sides in the dispute; at
the end of the hearing, it wasn't clear which way the court was leaning.
The panel of the U.S. Court of Appeals for the D.C. Circuit met to consider the government's request for an emergency "stay" of a preliminary
injunction from a lower court on 23 August that shut down federally funded work on hESCs. Chief Judge Royce Lamberth of the U.S. District Court in
Washington, D.C., had agreed with two researchers who work on adult stem cells that the Obama Administration's policy on hESC research likely violates
the 14-year-old Dickey-Wicker law barring federal funds for research that harms embryos. The surprise ruling forced the National Institutes of Health
(NIH) to freeze grant payments and reviews for over 2 weeks and halt intramural hESC research before the appeals court granted a brief "administrative"
stay on 9 September that allowed NIH to resume
its work while the court considered a longer stay.
Today's oral arguments took place in a courtroom a couple of blocks from the U.S. Capitol, origin of the controversial Dickey-Wicker law. About 55
people (including attorneys) attended the hearing, which lasted roughly 75 minutes—far longer than the 30 minutes officially allotted. Appearing
before the panel were Department of Justice attorney Beth Brinkmann, representing the Department of Health and Human Services and NIH; and Thomas
Hungar, attorney for the two adult stem cell researchers who filed the original suit.
Part of the discussion centered on the alleged harm to NIH and researchers if the ban is put back in place. Judge Thomas Griffith questioned
Brinkmann's claim of "irreparable harm" to NIH because $64 million in pending grants won't go out and researchers may lose experiments and materials.
Griffith asked why researchers can't simply restart their projects after the case is over in a few months.
Judge Brett Kavanaugh seemed skeptical of the government's argument that the derivation of stem cells is separate from using hESCs. Brinkmann noted
that the lines used in NIH-funded hESC work were often derived years earlier, sometimes in another country. But Kavanaugh said he found it "odd" that
NIH doesn't fund research on derivation but does fund hESC work. And Griffith seemed troubled by a scenario in which a scientist who derives hESC
lines--an "extractor," he called this role—also receives federal funds to study the resulting lines. The two activities seem "dangerously close," he
Only Judge Judith Rogers seemed sympathetic to the government's argument that Congress has demonstrated its support for hESC research, for example, in
a report accompanying a spending bill. (Kavanaugh and Griffith were appointed during the George W. Bush Administration, and Rogers was appointed by
then-President Bill Clinton.)
But if the hearing didn't seem to be going the government's way, the judges later came down hard on Hungar, the plaintiffs' attorney. Kavanaugh noted
that Congress originally passed the Dickey-Wicker law with research on embryos in mind, not hESCs. He compared the situation to a law banning federally
funded research on fetuses in vitro but not on aborted fetuses. The text of Dickey-Wicker is not as clear as one might like, he said. And although
Hungar claimed that NIH's policy on hESCs has been "all over the map," Griffith noted that NIH has consistently made the distinction that it will not
fund derivation work.
In response to questioning, Hungar clarified another point: contrary to one of the plaintiffs' briefs, in his personal view, he said, the 2001 Bush
policy allowing research on certain hESC lines also violates Dickey-Wicker.
All this left observers unclear on which way the panel may rule on the government's request for a longer stay while the appeals court hears the appeal
of the preliminary injunction. Amy Comstock Rick, an attorney and chief executive officer of the Parkinson's Action Network in Washington, D.C., thinks
the three judges all seemed well-versed in the issues and that they did not show "a predilection" for either side.
The court is expected to decide whether to grant the stay this week. Also today, the appeals court denied the University of California's request to become a party in the lawsuit but
granted permission for the university to file an amicus curiae brief supporting the government. And the government is expected to file a response today
to the plaintiffs' request that Lamberth rule on the underlying case quickly.
See our complete coverage of this issue.