By Rob Stein and Spencer S. Hsu
Washington Post Staff Writers
Friday, September 10, 2010; A6
An appeals court Thursday allowed the federal government to resume funding human embryonic stem cell research while the court reviews whether it violates a ban by Congress on spending taxpayer money for experiments that are connected in any way with the destruction of human embryos.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit granted a request from the Justice Department to lift a temporary injunction issued Aug. 23 blocking the funding, saying the court needed more time to consider the case.
While the move was praised by advocates for the research, the appeals court made clear it was not making a final decision. That means the reprieve could be short-lived and the fate of the funding could continue to be whiplashed by seesawing court rulings as the case moves through various appeals and courts.
"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 wrote in its one-page decision.
Opponents of stem cell funding have until Sept. 14 to file a response, and the government must submit its response by Sept. 20.
U.S. District Judge Royce C. Lamberth, ruling in a lawsuit filed by two researchers working on alternatives to the cells, had said the funding violated the Dickey-Wicker Amendment, a federal law that prohibits federal tax money from being used for research that involves the destruction of human embryos.
The ruling stunned scientists, patient advocates and other supporters of the research by throwing into question millions of dollars in federal funding and the Obama administration's policy aimed at expanding support for the field.
Lamberth on Tuesday rejected a request to lift the stay pending an appeal. But the Obama administration appealed that decision to the higher court. Justice Department lawyers argue that the funding does not violate the Dickey-Wicker Amendment because no federal money is used to actually destroy embryos. Federal funding is available only for experiments using cells obtained from embryos that have been destroyed using private money.
Lamberth's original decision dismissed that distinction.
In response to the order, the National Institutes of Health suspended consideration of any new grants for such research. Scientists who had already received funding could continue, but their grants would not be renewed when they come up for routine review, the NIH said.
In a written statement, the NIH and Justice Department said: "We are pleased with the Court's interim ruling, which will allow this important, life-saving research to continue while we present further arguments to the Court in the weeks to come."
In its appeal, the Justice Department argued that the halt to the funding was causing irreparable harm to researchers, the federal government and patients hoping for cures.
"It is crucial that federal funding for human embryonic stem cell research be restored permanently, and this stay is a step in that direction," said Lisa Hughes, president of the Coalition for the Advancement of Medical Research, a coalition of patient advocacy groups, scientists and research organizations that has lobbied for the funding. "While this issue continues to be argued in the courts, we call on Congress to move swiftly to resolve this issue and secure the future of this important biomedical research."
Rep. Diana DeGette (D-Colo.), who has championed permanently allowing the funding, said she expected Congress would consider legislation that was twice approved but then vetoed by President George W. Bush.
"Given the potentially devastating blow this court case could give to ethical research, I think the momentum is strong for passing legislation," DeGette said.
Individual researchers facing the loss of millions of dollars in federal grants were relieved.
"It is certainly encouraging that the appeals court has acted swiftly to lift the ban even while it considers the government's emergency motion. Needless to say, the district court's ban, if maintained, would be devastating for the research in my laboratory as well as the field in general,and the uncertainty we face currently has already derailed important research projects in my laboratory," said Ali H. Brivanlou, a stem cell researcher at the Rockefeller University in New York.
But the decision was condemned by opponents.
"The American people should not be forced to pay for even one more day of experiments that destroy human life, have produced no real-world treatments and violate an existing federal law," said Steven H. Aden, a lawyer at the Alliance Defense Fund, which filed the lawsuit. "The district court's decision simply enforced that law, which prevents Americans from paying another penny for needless research on human embryos made irrelevant by adult stem cell and other research."
Lamberth has indicated he is willing to quickly consider a motion for summary judgment filed Thursday by the plaintiffs. In that case, a fresh government appeal could be expected.
Aden said the uncertainty surrounding the ongoing legal battles could make it difficult for the government to resume activity involving the research in question.
"We expect the circuit court to rule expeditiously," Aden said, "and in light of that, as a practical matter, it may be difficult for NIH to turn the battleship around, so to speak, and go the other direction, knowing that decision might again be reversed within a matter of several days."