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Stem Cell Funding Order Survives Legal Challenge

(CN) - The 4th Circuit upheld an executive order to ease the Bush administration's strict restrictions on federal funding for stem cell research.

The National Organization for Embryonic Law, Nightlight Christian Adoptions and eight parents of children adopted as frozen embryos challenged President Barack Obama's 2009 order, which also issued new stem cell research guidelines for the National Institutes of Health.

The consolidated action named frozen human embryo Mary Scott Doe as lead plaintiff in a "class" of other embryos.

Acknowledging the "sensitivity of the underlying issue and respect the sincerity of arguments on all sides of the question," the federal appeals panel in Richmond, Va., refused to reverse a Maryland federal judge's decision to throw out the claims.

The plaintiffs argued that the executive order exposed the embryos to the risk of being, in the words of the court's opinion, "reduced to embryonic stem cells," and that they had established standing to assert their constitutional rights.

But Judge Harvie Wilkinson, writing for the three-judge panel, said that argument was "insufficient" because the plaintiffs could not show how all the frozen embryos were personally harmed.

"The complaint does not identify any of the named plaintiff's particularized characteristics," the ruling states. "Instead, it leaves us only with questions such as whether the embryo will ever be used for research and whether that research will be funded by the National Institutes of Health.

"We have no idea under what terms the named plaintiff embryo was donated or stored or what its status even is," Wilkinson added. "In the absence of answers, the chosen appellation of Mary Scott Doe could equally designate any member of an amorphous frozen embryo class."

The plaintiffs also argued that an influx of federal funds might sway women to donate their embryos for research, causing additional harm.

Wilkinson, however, was not persuaded, noting that "the complaint provides no basis to conclude that the named plaintiff in particular will be part of the subset that suffers any injury at all, much less an injury due to the challenged government policy."

The court also rejected the idea that parents of the frozen embryos, or those considering adoption, were at risk of injury in the future.

"The plaintiff parents here did not allege that they have already tried and failed to adopt embryos, nor do they allege any concrete plans for future adoption, so the possibility that they will never suffer the alleged injury looms too large," Wilkinson wrote.

Characterizes the complaint as a "policy dispute" over Obama's executive order, the ruling states that siding with the plaintiffs would transform the federal courts into "political organs."

"We do not doubt for a moment the sincerity of those who oppose, as well as those who support, the revised NIH funding guidelines," Wilkinson wrote, referring to the National Institutes of Health. "But depth of conviction, while admirable, cannot serve to displace the courts' own deep attachment to the law."

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