<img alt=“DCCourtKavanaughGriffithRogers.jpg” src=“https://blogs.nature.com/news/thegreatbeyond/DCCourtKavanaughGriffithRogers.jpg” width=“313” height=“127” align=“right” hspace"10px"/>The ability of many US stem researchers to pursue their science in the short term will hinge on 30 minutes of legal arguments later this month and on the opinions of three judges in the Washington DC Circuit of the US Court of Appeals.
Yesterday the appeals court indicated that it will hear 15-minute oral presentations from lawyers on both sides of an ongoing lawsuit over he matter. They will be arguing the question of whether government funding for the research should continue while the courts consider the substance of the case: whether it is legal for the US government to fund work involving human embryonic stem cells (see Case Background, below).
The three judges who will preside over the arguments include: Brett Kavanaugh, Thomas Griffith and Janice Rogers Brown (left to right in image). Kavanaugh was involved in an earlier decision to give two plaintiffs standing in the case, allowing them to proceed with their suit against the government. Prior to his appointment to the court, he was a staff secretary to President George W. Bush.
The case before DC District Court Judge Royce Lamberth began making headlines on 23 August when Lamberth decided that there were grounds to put an immediate stop to all federal funding for human embryonic stem cell research while the case is decided. His injunction threw the entire field into disarray: Only those scientists with federal grant money already in hand were permitted to continue their work. All other approved projects expecting funding from the National Institutes of Health (NIH) were frozen as was the review of applications for new grants. All internal research at NIH involving human embryonic stem cells was shut down on 30 August .
Last week, Lamberth’s injunction was temporarily lifted by the appeals court while it considers whether the injunction should continue or not as the case winds its way through the courts. September 27 has been set as the day when a three-judge panel of the court will hear the arguments, rather than simply consider written submissions. It will then decide whether or not Lamberth’s injunction should be in effect while the case proceeds.
While the appeals court deals with the injunction, a timeline has now emerged for key milestones in the substantive case before Lamberth’s court. According to the plaintiffs’ lawyer Samuel Casey of Fairfax-Virginia-based Advocates International, the government has until 30 September to argue against the plaintiff’s request, made last week, for a summary judgment in the case—meaning a swift decision made without a court appearance. The plaintiffs will then have seven days to file a counter-response; and, finally, both sides will have until October 17th to jointly file agreed-upon background documentation. If Lamberth grants summary judgment, that means the injunction, even if temporarily upheld until then by the court of appeals, could be back permanently — or at least until the case on its merits is appealed up through the courts.
CASE BACKGROUND
James Sherley and Theresa Deisher, who work with adult stem cells, are the plaintiffs in a lawsuit aiming to stop government funding of human embryonic stem cell research. Their position is supported by pro-life groups. In June, they were granted legal standing in the case because they say funding for human embryonic stem cell research unfairly channels support away from their own work.
After reviewing the case, on 23 August, Judge Royce Lamberth determined that the government’s funding policy violates a 1996 law called the Dickey-Wicker Amendment which prohibits NIH from supporting research involving the destruction of a human embryo. During the administrations of US Presidents Bill Clinton, George W. Bush and Barack Obama the Dickey-Wicker amendment has been interpreted to mean that the NIH can fund research on human embryonic stem cells but not the derivation of those cells from human embryos. Since then, human embryonic stem cell lines have been derived with private funding from donated embryos (created at fertility clinics) that would otherwise be discarded. In 2001, Bush restricted the number of lines that were eligible for federal funds. Those restrictions were lifted by an executive order from Obama in 2009.
To date, the NIH has funded roughly $550 million in human embryonic stem cell research.
The court battle is currently proceeding on two separate fronts. The first will decide whether funding may continue while the case works its way through the courts. Lamberth initially ruled “no”, which effectively froze funding, but last week the US Court of Appeals for the District of Columbia Circuit – one level below the US Supreme Court – reversed that ruling. As soon as 27 September, however, the appeals court may change its mind (after hearing oral arguments about lifting the injunction).
On the other front, lawyers for Sherley and Deisher have asked Lamberth to issue a speedy decision without a court hearing on the essential question of the case: is US government funding of human embryonic stem cell research illegal? Before Lamberth can grant such a “summary judgment” the government’s side needs to be given a chance to respond to the plaintiffs’ request.
Ultimately, whichever side loses the case is likely to appeal the case directly to the court of appeals; and whichever side loses there is likely to appeal to the US Supreme Court.
See our Stem Cell Injunction special section for full coverage of this developing story.