The US Court of Appeals for the District of Columbia Circuit minutes ago vacated a lower court’s preliminary injunction blocking the National Institutes of Health (NIH) from funding human embryonic stem cell research.
In this 2-1 decision in Sherley et al v. Sebelius, the majority wrote that judge Royce Lamberth of the US District Court for the District of Columbia “abused [the court’s] discretion” when he issued this preliminary injunction that shut down NIH funding of stem cell research for 17 days last summer.
Justices Douglas Ginsburg and Thomas Griffith, two of the three judges who heard arguments in the case in December, argue that the plaintiffs, adult stem cell researchers James Sherley and Theresa Deisher, were less than persuasive in their contention that they were being harmed by competion with human embryonic stem cell researchers for NIH funding.
“The hardship a preliminary injunction would impose upon ESC researchers, by contrast, would be certain and substantial,” the two judges write.
What’s more, they say, the plaintiffs’ case is unlikely to succeed on the merits — another of several legal standards that must be met in granting a preliminary injunction. Sherley and Deisher have challenged the legality of NIH funding for the research on the grounds that it violates the Dickey Wicker amendment, a law that prohibits federal funding for research in which embryos are destroyed or discarded.
Ginsburg and Griffith write that:
The plaintiffs are unlikely to prevail
because Dickey-Wicker 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.
They go on to conclude that:
…the balance of equities tilts against granting a preliminary injunction. That, combined with our
conclusion the plaintiffs have not shown they are likely to succeed on the merits, leads us to hold the district court
abused its discretion in awarding preliminary injunctive relief.
In her dissenting opinion, detailed beginning on page 22 here, Karen LeCraft Henderson called her two colleagues’ reasoning “linguistic jujitsu.”
The majority opinion has taken a straightforward case of
statutory construction and produced a result that would make
Rube Goldberg tip his hat. Breaking the simple noun “research”
into “temporal” bits…narrowing the verb
phrase “are destroyed” to an unintended scope…
dismissing the definition section of implementing regulations
promulgated by the Department of Health and Human Services
(HHS) (in case the plain meaning of “research” were not plain
enough)…my colleagues perform linguistic jujitsu.
I must therefore respectfully dissent.
While the preliminary injunction has now been vacated, a ruling on the substance of the case still rests with Judge Lamberth. Both sides have asked him to rule speedily on the matter.
Watch this space for further news on the case.
Samuel Casey, a lawyer with the Law of Life Project in Washington, D.C., who is working with defendants James Sherley and Theresa Deisher, said after reviewing the opinion that the scientists’ legal team is considering asking the Court of Appeals to reconsider the preliminary injunction’s merits en banc, meaning that all 13 judges on the court would consider it.
“In this case there is a very important dissent byJudge Henderson that is so good and so true that plaintiffs are literally invited to seek an en banc rehearing by the entire DC circuit,” Casey said.
If asked, the Court of Appeals is not obliged to grant an en banc hearing. Casey says however that strong dissents like Henderson’s may encourage a full court to do so.
Another route still open to the plaintiffs is an appeal to the US Supreme Court.