American Society of Hematology

Appeals Continue in Court Case on Federally Funded Embryonic Stem Cell Research; New Legislation Introduced in the House

Published on: July 01, 2011

The parties involved in the ongoing court case challenging federal funding of human embryonic stem cell research each recently filed supplemental briefs in response to an April Court of Appeals ruling that the Obama Administration and the National Institutes of Health (NIH) can continue using federal tax dollars to fund human embryonic stem cell research. 

The April 2011 Court of Appeals ruling vacated an earlier preliminary injunction banning federally funded embryonic stem cell (ESC) research, pending the outcome of a lawsuit brought against the federal government by two researchers claiming that they could be harmed by government funding of ESC research. Because of the researchers' work exclusively with adult stem cells, this lawsuit claimed adult stem cell researchers would face increased competition for federal research funding if ESC research were to be funded by the federal government. The preliminary injunction, granted by U.S. District Judge Royce C. Lamberth in August 2010, cited the Dickey-Wicker Amendment, passed by Congress in 1996, that prohibits federal funding for "research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero." In his August 2010 ruling, Judge Lamberth noted the “unambiguous intent of Congress to enact a broad prohibition of funding . . . all research in which an embryo is destroyed, not just the piece of research in which the embryo is destroyed,” and prohibited the NIH and any other federal agency from funding human embryonic stem cell research.

The Court of Appeals, however, believed that the Dickey-Wicker Amendment is “ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used.”

In the briefs filed this week, the plaintiffs argue that the Court of Appeals ruling on the preliminary injunction was narrow enough to still allow U.S. District Judge Lamberth to ultimately rule in their favor and conclude that federally funded embryonic stem cell research is not allowable under current law. The Department of Justice, representing the Obama Administration and the NIH, argues that the Court of Appeals ruling, while technically limited to a preliminary injunction, was in fact broad enough in its interpretation of Dickey-Wicker to guide Judge Lamberth’s decision and rule in favor of the NIH.

There is no date by which Judge Lamberth must issue his next ruling in the case. In the meantime, federal funding continues to be available for human embryonic stem cell research and additional stem cell lines continue to be approved and added to the NIH Human Embryonic Stem Cell Registry.

Meanwhile, Representatives Diana DeGette (D-CO) and Charles Dent (R-PA) recently introduced H.R. 2376, a bill which seeks to codify the current NIH embryonic stem cell research guidelines. The bill is nearly identical to legislation introduced in the last Congress by Representative DeGette and former Representative Michael Castle (R-DE). Given the current dynamics on Capitol Hill as well as the pending court case, there are no current plans for the House to move the bill.

ASH has been an active leader supporting stem cell research. The Society was one of the first physician organizations to support embryonic stem cell research, and ASH has issued a policy in support of all avenues of stem cell research. The Society strongly supports federal funding for all avenues of stem cell research under NIH federal research guidelines and with appropriate public oversight.

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