Posted on behalf of Meredith Wadman.

A senior US appeals court ruled today that the US National Institutes of Health (NIH) is legally able to fund research based on human embryonic stem cells. The decision means that the plaintiffs in the case, two adult-stem-cell researchers who are trying to stop the funding, have few options left. Their lawyers said today that they are considering asking the final arbiter, the US Supreme Court, to hear their appeal. But that court accepts only about 1% of the cases it is asked to hear.

The decision, by a three-judge panel of the US Court of Appeals for the District of Columbia Circuit,  upholds a 2011 decision by a lower court, which found that the NIH’s funding of the research was legal despite a 1996 law, passed by Congress, which forbids funding research in which human embryos are destroyed. The NIH-supported research uses cell lines derived by destroying day-old embryos.

Adult-stem-cell researchers James Sherley, of the Boston Biomedical Research Institute in Watertown, Massachusetts, and Theresa Deisher, of AVM Biotechnology in Seattle, Washington, first sued the NIH to stop the funding in 2009. The case — Sherley v. Sebelius — has  been wending its way through the courts ever since. Judges have found the wording in the 1996 law ambiguous, because it does not clearly state whether “research” pertains only to the use of a stem-cell line or extends to the derivation process that destroyed an embryo to produce the line.

Given that ambiguity, Chief Judge David Sentelle found, in the opinion published today, that the NIH’s interpretation was reasonable:  it may not fund destructive cell-line derivation with federal dollars, but it can fund research with the cell lines thus produced.

Supporters of the research were jubilant. “We are thrilled,” said Amy Rick, the president of the Coalition for the Advancement of Medical Research in Washington DC. In a statement, NIH director Francis Collins said that the ruling was “another step in the right direction”.