Court Upholds Funding for Embryonic Stem Cell Research

     (CN) - The federal government can fund stem cell research that does not directly destroy human embryos, the D.C. Circuit ruled in a case testing the balance of science and ethics.
     The federal appeals court in Washington, D.C., upheld Chief U.S. District Judge Royce Lamberth's dismissal of a lawsuit challenging guidelines on embryonic stem-cell research that President Obama expanded in 2009.
     The D.C. Circuit said Obama's executive order did not violate the Dickey-Wicker amendment, a rider in appropriation bills since 1996 that bans the use of federal money to destroy embryos.
     Before 2009, researchers were required to use embryonic stem cells from existing stem cell lines to receive federal funding, based on a 2001 executive order by then-President George W. Bush.
     Obama removed that restriction in 2009, allowing research on embryonic stem cells created by in vitro fertilization and voluntarily donated by their owners.
     Two doctors, Nightlife Christian Adoptions, the Christian Medical Association and others sued, claiming the relaxed guidelines violated federal law.
     Judge Lamberth dismissed their lawsuit for lack of standing, but the D.C. Circuit revived the claims of the plaintiff doctors, who specialize in adult stem cell research and compete for federal funding.
     On remand, Lamberth enjoined Obama's executive order and later refused to lift the injunction pending appeal. The D.C. Circuit intervened and granted a stay in September 2010. A subsequent ruling allowed funding to continue.
     In oral arguments before the D.C. Circuit, the government argued that the ban would cause irreparable harm, forcing the National Institutes of Health to shut down eight projects worth $9.5 million and threatening $64 million in taxpayer funds already invested in 24 research projects that could help cure disease.
     The D.C. Circuit vacated Lamberth's injunction last April, saying the NIH had reasonably interpreted the Dickey-Wicker rider as allowing the funding of research projects in which embryonic stem cells will be used, but neither created nor destroyed.
     Following the higher court's lead, Judge Lamberth granted summary judgment to the government.
     On appeal, the doctors again argued that the NIH guidelines violate the Dickey-Wicker ban on federal funding of "research in which a human embryo or embryos are destroyed."
     "On this issue, the law of the case is against them," Chief Judge David Sentelle wrote for the three-judge panel. "This is precisely the same argument we rejected in our review of the preliminary injunction order."
     In its earlier ruling, the court had accepted the government's narrow definition of "research" to mean a "discrete endeavor" that excludes the destruction of embryos before the research takes place.
     Isolating embryonic stem cells for research requires the cells to be removed from the human embryo, cultured and stabilized. This process of "derivation" destroys the embryo.
     "Dickey-Wicker permits federal funding of research projects that utilize already-derived [embryonic stem cells] -- which are not themselves embryos -- because no 'human embryo or embryos are destroyed' in such projects," Sentelle wrote, emphasizing the present tense in the court's earlier ruling.
     The panel also rejected the doctors' claim that the guidelines illegally subject human embryos "to risk of injury or death" by boosting the demand for more embryonic stem cell lines, thus incentivizing the destruction of embryos to create those lines.
     Sentelle stressed that the research itself does not destroy or threaten embryos, and that the Dickey-Wicker rider does not ban "research which provides an incentive to harm, destroy, or place at risk human embryos."
     Though Judge Janice Rogers Brown agreed with her colleagues, she said "there are several aspects of this case that ... should trouble the heart."
     "Given the weighty interests at stake in this encounter between science and ethics, relying on an increasingly Delphic, decade-old single paragraph rider on an appropriations bill hardly seems adequate," she wrote.