Three federal appeals judges today questioned lawyers on both sides of the lawsuit over whether federally funded research on human embryonic stem cells
(hESCs) is illegal. The U.S. government seemed to hold its own during the 45-minute session, but it was difficult to tell which way the court was
leaning.
The 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit met to decide whether to uphold a preliminary injunction issued on 23 August by
Chief Judge Royce Lamberth. Lamberth found that federally funded hESC research violates the 15-year-old Dickey-Wicker law, which bans the use of federal funds for research that destroys or
harms embryos. (hESCs are derived from days-old embryos.) The injunction froze National Institutes of Health (NIH) research on hESCs, until the appeals
court stayed the injunction on 9 September so it
could hear an appeal.
Today's oral arguments were scheduled to last 30 minutes but went a little longer. Department of Justice attorney Beth Brinkmann started out by arguing
that Lamberth's interpretation was "fundamentally flawed" because the government is funding research on stem cells, not embryos.
Judge Thomas Griffith broke in 2 minutes later, asking whether the derivation of stem cells and research using them are "inextricably intertwined" and
so "both should be banned together?" He later asked why NIH allows researchers to pay material fees for orders of hESCs; Brinkman explained that the
fees don't cover derivation, which takes place much earlier.
Griffith also seemed skeptical of the government's argument that three congressional reports have affirmed the Obama Administration's July 2009 stem
cell guidelines.
If the original sponsor disagrees, he said (apparently referring to Senator Roger Wicker (R-MI) who has said he opposes federal funding for hESC
research) this line of reasoning "washes out."
Next up was Thomas Hungar, the plaintiffs' attorney. Griffith wanted to know if the plaintiffs believe that research on Bush-era stem cell lines
violates Dickey-Wicker. Hungar said the Bush policy is "also illegal" because of the link between derivation and research on hESCs. "You don't bound it
by time," Griffith said somewhat skeptically, noting that even research on lines derived 20 years ago could not be funded.
Judge Douglas Ginsburg didn't seem to buy Hungar's argument that derivation and research on hESCs are the same thing: the text of the Dickey-Wicker
bars research "in which" embryos are destroyed, not "for which," he noted. Ginsburg later said that Dickey-Wicker refers to
"research in which embryos ARE destroyed, not WERE destroyed."
Hungar argued that even if the court finds that derivation of hESCs and research using the cells can be separated into "chunks," NIH policy still
violates Dickey-Wicker because it creates incentive to derive more lines and thereby destroy more embryos. This "absolutely creates more than a minimal
risk" to embryos, he said.
The judges must use a four-part test to decide whether to uphold the preliminary
injunction: whether the plaintiffs are likely to succeed on merits; the harm they will suffer if the injunction is not granted; the balance of harms to
the plaintiffs compared with NIH; and whether granting the injunction is in the public interest.
Along those lines, Griffith noted that even if the court agrees that hESC research violates Dickey-Wicker, it could "come ... to a different place" if
they find the harm to the plaintiffs (two researchers who say the NIH policy makes it harder for them to win grants to study adult stem cells) is
outweighed by the negative impact on researchers and the public if hESC research is shut down.
Judge Karen LeCraft Henderson had questions for both sides about the government's definition of research, whether Dickey-Wicker applies to agencies
other than NIH, and why there was never an executive order for the Bush policy.
All three judges were appointed by Republication presidents—Griffith by George W. Bush, Henderson by the first Bush Administration, and Ginsburg by
Reagan. Griffith was part of an earlier panel
that stayed the injunction.
Stem cell research supporters at the hearing seemed happy with the government's performance. Anthony Mazzaschi of the Association of American Medical
Colleges says what's crucial is that the court is expected to rule on whether hESC research violates Dickey-Wicker, which "will shape future decisions
in this case." (Not to mention other cases related to hESCs.) A ruling could come between mid-December and mid-January, says Amy Comstock Rick of the
Parkinson's Action Network.
Even if the appeals court throws out the preliminary injunction, Judge Lamberth could rule any day on the underlying case and issue a permanent
injunction (which the government would appeal). Eventually, the case will likely go to the U.S. Supreme Court, says Mazzaschi. "There will be many more
trees killed to print briefs before it's over."
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