Created by on 11/19/2010 12:00:00 AM

The U.S. Department of Justice (DOJ) filed its final brief in its appeal of the preliminary injunction that had prohibited federal funding for human embryonic stem cell research (hESC). Filed on November 4, 2010, the document argues that plaintiffs James L. Sherley and Theresa Deisher, the adult stem cell researchers suing NIH, have demonstrated no likelihood of success on the merits of the case pending in the U.S. District Court for the D.C. Circuit. Sherley and Deisher had argued that awarding funds for 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. DOJ countered that the amendment does not prohibit NIH from funding work on embryonic stem cells once they have been derived, an interpretation NIH has held since 1999 and which has been ratified repeatedly by Congress. In addition, the Justice Department also rejected the plaintiffs’ claims that NIH violated the Administrative Procedures Act in issuing its Guidelines for Human Stem Cell Research by failing to consider all of the public comments it received on its draft document. The Guidelines were developed to implement President Obama’s Executive Order removing the barriers to hESC research funding that had been put in place under the Bush administration.

Oral arguments are scheduled in the Court of Appeals on December 6, 2010. That court’s decision will determine if the preliminary injunction issued by the U.S. District Court will be upheld. Meanwhile the District Court has yet to decide on whether or not to make its preliminary injunction permanent. Whatever the decision, legal experts anticipate that the case will be headed for another level of appeal.