Thursday September 9, 2010

Embryo Research Can Continue Pending Lawsuit: D.C. Appeals Court

By Peter J. Smith

WASHINGTON, D.C., September 9, 2010 ( – The U.S. Court of Appeals in Washington has stayed a federal judge’s temporary injunction on the National Institute of Health’s (NIH) embryo-destroying stem-cell research, while that judge continues to review the case.

Earlier U.S. District Chief Judge Royce Lamberth had denied the U.S. Justice Department’s request to stay his order that human embryonic stem cell (hESC) research projects funded by the NIH violate an “unambiguous” U.S. statute, the Dickey-Wicker amendment, which prohibits federal dollars from going to research that destroys human embryos.

“The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the emergency motion for stay and should not be construed in any way as a ruling on the merits of that motion,” the appeals court stated.

The appeals court order allows the NIH to continue to fund hESC projects until Lamberth makes a final decision in the case.

The appeals court gives attorneys for the plaintiffs, two scientists involved in adult stem cell research, Drs. James Sherley of Boston and Theresa Deisher of Seattle, until September 14 to file a response. The U.S. Department of Justice can file a counter response on September 20.

The Justice Department filed an emergency motion last Tuesday with Lamberth contending that if he did not lift the preliminary injunction, pending their appeal to the D.C. Court of Appeals, then “irreparable harm” would occur if NIH “is forced to cease all activities pertaining to [hESC] research that is subject to government funding.”

Written testimony from NIH head Dr. Francis Collins stated that $546 million dollars had been invested by the NIH in hESC research since 2002, and that $54 million to 24 research projects will be prevented by Lamberth’s order. Collins said that the injunction would mean the whole effort since 2002 “will have been wasted” by stopping experiments and research prematurely.

However Lamberth emphatically stated that, “In this Court’s view, a stay would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment.”

“Congress remains perfectly free to amend or revise the statute. This Court is not free to do so.”

Congress attempted to pass a bill permitting funding of human embryonic stem cell (hESC) research in 2007, but that legislation was vetoed by President George W. Bush.

In March 2009, President Barack Obama issued an executive order rescinding President Bush’s executive order that limited federal funds to hESC lines already in existence, giving the green light to finance the creation of new hESC lines and trials with federal dollars.

The case in which that executive order is being contested is Sherley v. Sebelius, 10-5287, U.S. Court of Appeals for the District of Columbia.

See previous coverage by

Obama Justice Dept Seeks Stay of Order Nixing NIH Embryonic Stem Cell Funding

Congressmen Seek to Undermine Embryonic Stem Cell Ruling by Changing Law

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