23 May 2011
ByAppeared in BioNews 608
The US Court of Appeals for the District of Columbia Circuit overturned a preliminary injunction banning federal spending on research involving human embryonic stem cells (hESCs) last month.
An injunction, which scientists said would have cancelled a number of existing hESC research experiments, was imposed by District Court Judge Royce Lamberth in August 2010 after two scientists brought a case against the National Institutes of Health (NIH). They argued NIH guidelines expanding hESC research violated the Dickey-Wicker Amendment, a 1996 law barring the use of federal funds for research that destroys embryos.
The decision was appealed and the injunction lifted after only 17 days by the Court of Appeals in Washington while it heard the case. Its majority ruling delivered by a three-judge panel found Judge Lamberth had 'abused [the court's] discretion' when he issued the preliminary injunction.
Judge Douglas Ginsburg gave the majority decision on 29 April. He wrote: 'We conclude the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an hESC from an embryo, it does not prohibit funding a research project in which an hESC will be used'.
Should an injunction be granted, he said, the effect of researchers would be 'certain and substantial'. 'Their investments in project planning would be a loss, their expenditures for equipment a waste, and their staffs out of a job', he wrote.
The ruling was welcomed by the Obama administration. White House spokesman Nick Papas said: 'Responsible stem cell research has the potential to treat some of our most devastating diseases and conditions and offers hope to families across the country and around the world'.
Dr Francis Collins, director of the NIH also welcomed the news: 'This is a momentous day not only for science but for the hopes of thousands of patients and their families who are relying on NIH-funded scientists to pursue life-saving discoveries and therapies that could come from stem cell research'.
However, dissenting Judge Karen LeCraft Henderson said her colleagues performed 'linguistic jujitsu' to arrive at their conclusion. She wrote: 'Research, then, is the express target of the ban the Congress imposed with respect to the destruction of a human embryo... The Congress... chose broad language with the plain intent to make the ban as complete as possible'.
Dr David Prentice, Senior Fellow for Life Sciences with the Family Research Council, called the decision 'disappointing'. He said: 'Federal taxpayer funds should go towards helping patients first, not unethical experiments. We believe that further court decisions will support congressional protections of young human life and divert federal funds toward lifesaving adult stem cells'.
Professor Hank Greely of Stanford Law School in California, however, said it was unlikely any appeal of the decision would be heard. Furthermore, now the case has returned to Judge Lamberth to decide on the matter, it would be 'much harder' for him to rule against the direction of the appeals court.
'No matter how you look at it, this was a very good day for the human embryonic stem cell research community. The best chance the plaintiffs had was with this panel, and everything from here out is low probability for them', he said.