Created by on 11/5/2010 12:00:00 AM


October saw several developments in the pending court cases involving federal funding for human embryonic stem cell (hESC) research. On the14th, the Department of Justice (DOJ) filed a brief asking the U.S. Court of Appeals to lift the preliminary injunction that had halted federal funding for hESC research. While the appeals court had issued a temporary suspension of the injunction issued by Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia, it has yet to make a final determination on whether or not to overturn the lower court’s decision.

In its brief, DOJ argued that the injunction should be lifted because it is “based on legal error and an erroneous assessment of injuries” to the adult stem cell researchers (i.e., the plaintiffs) who brought the suit against NIH. DOJ states that plaintiffs have not demonstrated the likelihood that the case will be successful on its merits because federal funding for hESC research does not violate the Dickey-Wicker amendment, a provision attached to the annual appropriations bill that prohibits research that results in the destruction of human embryos. Furthermore, DOJ argues that NIH has consistently interpreted Dickey-Wicker as permitting hESC research, and Congress has repeatedly ratified that interpretation. The brief also states that the plaintiffs have failed to demonstrate that an injunction is required to avoid imminent, irreparable injury to themselves, but that it would result in irreparable injury to NIH, NIH funded research, and the public interest.

While the Court of Appeals wrestles with whether or not to overturn the preliminary injunction, the U.S. District Court has yet to make a final decision on whether to permanently allow or prohibit federally supported hESC science. The same day that DOJ filed its brief in the appeal, the plaintiffs submitted a combined brief to the District Court making their case for an expedited ruling in their favor, opposing NIH’s request for an expedited ruling in its favor, and responding to the amici curiae briefs submitted on behalf of NIH. The plaintiffs argued that Dickey-Wicker is unambiguous in its prohibition of hESC research, and that the legislative history is irrelevant to the interpretation of the amendment. They also stated that NIH promulgated the NIH Guidelines for Stem Cell Research in violation of the Administrative Procedures Act by failing to consider the public comments it received when crafting the guidelines. Both courts are expected to issue rulings on the cases within the next few weeks.