Eight months after a single federal judge ordered a broad ban on federal financing of embryonic-stem-cell research, an appeals court has again rejected the restriction.
The split ruling on Friday by a three-judge panel of the U.S. Court of Appeals for the District of Columbia is the latest defeat for an attempt by a pair of private researchers, backed by religious groups, to block a policy of expanded stem-cell research announced two years ago by President Obama.
The ruling does not alter the National Institutes of Health’s distribution of more than $70-million in support for research using embryonic stem cells, as previous court rulings already had overturned the injunction against such spending that was imposed last August by Judge Royce C. Lamberth of the U.S. District Court in the District of Columbia.
The Obama administration called Friday’s decision another win for a critical avenue of scientific exploration. “Today’s ruling is a victory for our scientists and patients around the world who stand to benefit from the groundbreaking medical research they’re pursuing,” said Nicholas W. Papas, a White House spokesman. Francis S. Collins, the NIH’s director, said he was “delighted and relieved to learn of the decision.”
Opponents of the administration’s policy said the ruling covered only a portion of their arguments and said they would press on with their legal battle. “It will continue to be a long slog,” said Samuel B. Casey, one of several lawyers representing the plaintiffs, James L. Sherley and Theresa A. Deisher.
Stem cells, found in human beings and other animals, have the ability to replicate and grow into other cell types, raising hopes for cures and treatments for a range of devastating ailments and conditions that include cancers, diabetes, heart disease, and paralysis.
President George W. Bush, citing ethical concerns, ruled in August 2001 that federal money could not be spent on any projects using stem cells created after that date from human embryos. That effectively shut down stem-cell research at universities across the country, and Mr. Obama issued an executive order in March 2009 that largely overturned the Bush policy.
Dr. Sherley and Ms. Deisher argued in their lawsuit that the Obama policy violated a provision that has existed in federal law since 1996, known as the Dickey-Wicker Amendment, that prohibits the use of federal money for the creation or destruction of human embryos for research purposes. Embryos are generally considered to be destroyed when stem cells are obtained from them.
‘Unlikely to Prevail’
The case has proceeded on two tracks. One involves a thorough evaluation of the competing claims. The other, moving faster, concerns the question of whether there’s enough clear evidence on either side to justify imposing an injunction against the federal spending while the overall case proceeds. Judge Lamberth ordered the injunction in August, but the appeals court reversed him in two rulings issued in the following month. The decision on Friday followed more-extensive hearings by the appeals court to consider the long-term fate of the injunction.
In their ruling, the panel of three judges, all appointed by Republican presidents, decided on a 2-to-1 vote to permit federal financing of research on human embryonic stem cells while the overall trial proceeds. The decision was written by Judge Douglas H. Ginsburg, who said the plaintiffs “are unlikely to prevail because Dickey-Wicker is ambiguous.”
The NIH also “seems reasonably to have concluded” that, although Dickey-Wicker bars financing for the derivation of embryonic stem cells, it does not prohibit federal support of a research project in which an embryonic stem cell will be used, Judge Ginsburg wrote. The decision was also signed by Judge Thomas B. Griffith. Judge Karen L. Henderson filed a dissent calling Dickey-Wicker clear in its rejection of support for research “in which a human embryo or embryos are destroyed.”
The ruling was “a very narrow decision” that did little to affect the underlying lawsuit, said Mr. Casey, managing director and general counsel at the Law of Life Project, part of the Jubilee Campaign USA, a group that campaigns on issues of human rights and religious liberty.
Judge Henderson provided a “strong and reasonable dissent” that forms a good basis for a review by the full appeals court, Mr. Casey said. The plaintiffs have not made a final decision about appealing the ruling, but they expect the overall case eventually will reach the Supreme Court, he said.
Supporters of the research also expect a long process, said Anthony J. Mazzaschi, senior director for scientific affairs at the Association of American Medical Colleges. That said, the ruling by the three-judge panel was significant in that it marked the first time a court had declared the NIH’s interpretations of the facts to be reasonable, Mr. Mazzaschi said.
