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Key oral arguments made in stem cell case

Brinkmann.JPGThe attempt by two adult stem cell researchers to quash US funding for human embryonic stem cell research reached a critical juncture this morning, as a high-profile appeals court heard key oral arguments in the case.

Arguing before a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, Beth Brinkmann (pictured), an attorney for the US Department of Justice, said that a lower court’s reading of the law, which led to a temporary shutdown of funding for the research last summer, “is fundamentally flawed and should be reversed.”

Thomas Hungar, of the Washington law firm Gibson, Dunn, argued for the plaintiffs that “it is undisputed in this case that human embryonic stem cell research always entails the destruction of embryos.” As such, he said, it breaks the law at the center of the case: the Dickey Wicker amendment, which bars federal funding for research in which human embryos are destroyed.

The crucial question is which lawyer the three judges – Douglas Ginsburg, Thomas Griffith and Karen LeCraft Henderson – will agree with as they consider whether to uphold or overturn a preliminary injunction issued by US District Court judge Royce Lamberth on 23 August. (In September, the appeals court stayed the injunction temporarily while it hears the case on its merits.)

The government, represented by the Department of Justice, is appealing the injunction. The lawsuit was brought by plaintiffs James Sherley, a scientist at the Boston Biomedical Research Institute and Theresa Deisher, who directs research at AVM Biotechnology in Seattle.


In arguments that lasted about 45 minutes in a courtroom crowded with 52 spectators, the three judges zeroed in on where stem cell derivation ends and research begins, and if the two can really be separated for legal purposes, as US policies under George W. Bush and Barack Obama have assumed – a distinction that the plaintiffs argue is fallacious.

Here are excerpts from two of the more pointed exchanges from this morning’s arguments, with paraphrasing in brackets. (Italics are used for words that the judges emphasized):

Judge Griffith to Brinkmann: You agree that there can be no federal funding for derivation [of human embryonic stem cells.]

Brinkmann: [Correct.]

Griffith: So the only question for us is whether the later research is somehow inextricably intertwined with the derivation….your argument rises or falls on [our answer to that.]

Brinkmann: We have Congressional ratification and a clear legislative history.

Griffith: Congressional ratification doesn’t help you if [Congress’s] reading of the statute is wrong.”

___________

Hungar: Federal funding of this research to the tune of hundreds of millions of dollars absolutely creates more than a minimal risk that an embryo is going to be destroyed.

Judge Ginsburg: [The Dickey-Wicker amendment] says in which [an embryo is destroyed], not for which [an embryo is destroyed.]

Hungar: The fact that this is federally funded research creates an incentive [for that destruction.]

Ginsburg: So you’re back to the incentive argument again….This is all one argument: the research is a continuum….It started with the destruction [and derivation of the cell line and goes forward open-endedly after that]….and [your] reason for reading it that way is the incentive…..There’s research into making lab equipment and there’s research using [that] equipment. [There’s no reason to say they’re the same.]….This is pretty straightforward [He reads from the statute:] `research in which human embryos are destroyed, not were destroyed.’

___________

The judges also discussed the degree of harm caused to the plaintiffs if the injunction is upheld, and to the government if it is not — a key legal consideration in weighing whether a preliminary injunction is justified:

Griffith to Hungar: Let’s imagine a situation where we agreed with you on the language of the statute but thought the harm [to the government would be much greater than the harm to your clients. How does the court go about balancing that?]

In response, Hungar argued that his clients, by having to compete for limited NIH funding as adult stem cell researchers pitted against human embryonic stem cell researchers, are “suffering ongoing hardship….There’s no dispute that it’s irreparable.”

___________

Stem cell research proponents were upbeat after the arguments concluded. “The Department of Justice did a great job,” said Amy Comstock Rick, the chief executive officer of the Washington-based Parkinson’s Action Network.

“I thought it went well,” added Tony Mazzaschi, the senior director of scientific affairs at the Association of American Medical Colleges.

“I think this is the key [court hearing],” said Mazzaschi, because it goes to the legal issue at the heart of the lawsuit. “It is likely we’ll have a key decision from the appeals court on whether Dickey-Wicker allows federal funding for human embryonic stem cell research.”

It is not known how quickly the court will rule. Its previous ruling in the matter – in which it decided to allow federal funding to continue while it considered the preliminary injunction on its merits – came one day after oral arguments were heard.

Meanwhile, there has been silence from Judge Lamberth of the District Court, who has been asked by both sides to rule quickly on the primary question of whether federal funding for the research should be blocked permanently. Some observers speculate that Lamberth is waiting for the appeals court’s ruling on the preliminary injunction before making his decision, which is almost certain to be challenged by the losing side.

Comments

  1. Report this comment

    Paul Knoepfler said:

    It could go either way, but I think from the way the judges’ questions went that the odds are now more likely that the court will rule against the plaintiffs, allowing ES cell research to continue. Rumor has it that the DOJ believes it has a winning case.

    We discuss these issues here:

    https://www.ipscell.com

    Paul

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    Joe said:

    We need embryonic stem cell research federally funded. Visit Stem Cell Action and tell Congress to pass legislation so that this research is never jeopardized again, http://www.stemcellaction.org.

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    electronic cigarette wholesale said:

    In arguments that lasted about 45 minutes in a courtroom crowded with 52 spectators, the three judges zeroed in on where stem cell derivation ends and research begins, and if the two can really be separated for legal purposes, as US policies under George W. Bush and Barack Obama have assumed – a distinction that the plaintiffs argue is fallacious.

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