Created by on 10/1/2010 12:00:00 AM

 This week, the U.S. Court of Appeals for the D.C. Circuit ruled that the National Institutes of Health (NIH) could continue to fund human embryonic stem cell research (hESC) while it considers the government’s appeal of an injunction that brought federal support for this area of research to a halt. The ruling was one of several recent procedural decisions in the complicated case unfolding simultaneously in the appeals court and a lower U.S. district court. Earlier this month, the appeals court issued a temporary administrative suspension of the district court’s August 23rd injunction; the more recent ruling extends that suspension until the court makes a final determination in the appeal. The decision followed quickly on the heels of oral arguments before the court in which Department of Justice attorneys representing NIH argued that resuming a ban on hESC funding would irreparably harm researchers.

Prior to the latest legal decision, the University of California (UC) petitioned the Court of Appeals to become a party in the lawsuit. It argued that the ban would have a profoundly negative impact on research and education in the UC system and that its interests are not represented by any of the parties in the case. The appeals court rejected the motion, but did grant the university permission to submit an amicus curiae brief supporting the federal government.

In the meantime, the lower court is moving ahead with the original lawsuit challenging the legality of hESC research. Judge Royce C. Lamberth is expected to rule on the substance of that case next month. The plaintiffs – the adult stem cell researchers who brought the suit against NIH – asked the court to rule in their favor without a hearing. Objecting to the motion, the government argued that 1) the plaintiff’s interpretation of federal law is inconsistent with that of the last three presidential administrations, 2) NIH did not violate the Administrative Procedures Act (APA) in promulgating the NIH Guidelines for Human Stem Cell Research (the plaintiffs contend that NIH violated the APA by not considering thousands of comments it received in response to the draft guidelines), and 3) even if the court does agree with the plaintiffs, the proper course of action is to ask NIH to revise the guidelines, not outlaw federally-funded hESC research. The Coalition for the Advancement of Medical Research (CAMR), of which FASEB is a member, submitted an amicus curiae brief backing the government’s opposition to the plaintiffs’ motion. This is the second amicus that CAMR has filed in this case. The first was submitted on behalf of the government’s motion to halt the preliminary injunction.