Appeals court lifts ban on human stem cell funding

April 29, 2011

A federal appeals court handed the Obama administration a victory Friday in its effort to ease and broaden federal funding of human embryonic stem cell research.

In a 2 to 1 decision, a panel of judges for the U.S. Court of Appeals for the D.C. Circuit lifted a preliminary injunction that had blocked such funding, sending the case back to a trial judge.

The issue of federal financing of stem cell research is a contentious one — pitting scientists who say that stem cells will lead to medical advances against opponents who say it is immoral to destroy human embryos to obtain stem cells.

On Friday, Obama administration officials hailed the decision. “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,” Francis S. Collins, director of National Institutes of Health, said in a statement.

Opponents said it was still early in the legal battle. “It’s disappointing, but we have a long way to go,” said David Prentice, a senior fellow at the Family Research Council, which opposes federal funding for stem cell research but is not a party in the legal action.

The appellate court decision centered on a 1996 law, called the Dickey-Wicker Amendment, that prohibits federal funding for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk or injury or death greater than that allowed for research on fetuses in utero.”

Researchers obtain human embryonic stem cells from human embryos, which have been destroyed in the harvesting process. That means no federal funds can been used to procure stem cells, although many colonies of stem cells have been produced using private funding.

In 2009, the Obama administration reversed earlier restrictions on research and issued new rules designed to make it easier for scientists to obtain federal funds to experiment on many more existing colonies of stem cells.

Those new rules prompted a lawsuit by two researchers who sought to halt the expansion of federally funded experiments. Attorneys for the researchers argue that the law prevents the government from funding research on existing stem cells because embryos had been destroyed to create them.

In siding with the two researchers, U.S. District Judge Royce C. Lamberth ruled in August that Congress had been “unambiguous” in its attempt to ban funding of such experiments. That decision forced the NIH to halt funding for the research. The funding resumed, however, when the appeals court lifted Lamberth’s injunction in September while it reviewed his decision.

On Friday, the divided appeals court disagreed with Lamberth’s assessment. In the majority opinion, Judge Douglas H. Ginsburg wrote that Congress had used the present tense in crafting the law; that language, he wrote, “strongly suggests it does not extend to past actions,” such as the prior destruction of embryos.

In lifting the preliminary injunction, Ginsburg and Judge Thomas B. Griffith ruled that the two researchers are not likely to prevail in their arguments before Lamberth. Judge Karen LeCraft Henderson dissented, writing that the majority had performed “linguistic jujitsu.” The judges have “taken a straightforward case of statuary construction and produced a result that would make Rube Goldberg tip his hat,” she wrote.

James L. Sherley, one of the researchers who filed the suit, could not be reached for comment. The other, Theresa Deisher, referred questions to her attorney. Neither of their attorneys returned phone calls or e-mails.

Staff writer Rob Stein contributed to this report.

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