Created by on 12/20/2010

On Monday December 6th, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on whether or not to uphold the preliminary injunction in the case that brought NIH-funded human embryonic stem cell (hESC) research to a halt this past summer. The three judge panel asked tough questions of both sides and gave no clear indication as to which way they would ultimately rule. At the heart of the issue is whether NIH funding of hESC research violates the Dickey-Wicker amendment, a provision attached to the Labor, Health and Human Services appropriations bill that bars federal funding for research resulting in the destruction of human embryos. The Department of Justice has argued that while the amendment prohibits federal funding for the derivation of hESCs, there is no prohibition on funding research using those cells once they have been derived, an interpretation NIH has held since 1999 and which has been renewed annually by Congress.

The judges drilled down on whether research using hESCs is “inextricably intertwined” with the derivation process, as lawyers for James L. Sherley and Theresa Deisher, the adult stem cell researchers who brought the suit against NIH, contend. Also at issue in the hour-long hearing was whether or not federal funding of hESC research incentivizes stem cell derivation, thereby creating more than a “minimal risk” that embryos will be destroyed.
The judges’ decision on whether to uphold the preliminary injunction will rest on four considerations: whether the plaintiffs (i.e., Sherley and Deisher) are likely to succeed on merits of their case; the harm the plaintiffs will suffer if the injunction is overturned; the harm NIH will suffer if the injunction is upheld; and whether the injunction is in the public interest. It is possible, noted one of the judges, that the court could agree with the plaintiffs that federal funding of hESC research is illegal, but find that upholding the federal funding ban would do more harm to scientific research and the public than it would to the plaintiffs. If the judges ruled along those lines, NIH would be able to continue funding hESC research until the U.S. District Court for the District of Columbia Circuit decides the case on its merits. The Court of Appeals is expected to issue its ruling by the end of January.