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Court of Appeals hears arguments in stem cell case

BrinkmanHungar260.jpgOpposing attorneys in the legal battle over human embryonic stem cell research were grilled by some of the highest judges in the US this morning, in oral arguments before the Court of Appeals for the District of Columbia Circuit.

A three-judge panel from the court – which occupies the legal tier just below the US Supreme Court – grilled Justice Department lawyer Beth Brinkmann (pictured left), as she argued against a 23 August injunction by a lower court judge, halting government funding for human embryonic stem cell research. They also jousted with Thomas Hungar, of the big Washington firm Gibson, Dunn, who represented the plaintiffs and argued that it is illegal for the government to fund the research because it violates an existing law prohibiting funding for research in which embryos are destroyed.


Earlier this month, the appeals court had temporarily reversed the August injunction, allowing research funding by the National Institutes of Health to resume, and thus buying itself some time to consider the arguments that were made before it today. The question before it this morning was whether government funding for the research – an estimated $137 million in 2010 – should be allowed to continue through the weeks, months or years it could take the case to wind its way through the courts. They must make that decision, based in part on the government’s likelihood of ultimately prevailing in the case and in part by establishing that irreparable harm would result if they do not allow the research to continue.

The judges – Thomas Griffith and Brett Kavanaugh, both appointed by President George W. Bush, and Judith Rogers, appointed by President Bill Clinton – wasted no time getting to the vexing legal questions at the heart of the lawsuit. (See case history.)

Here is a partial transcript of a few of the more memorable exchanges that occurred at the appeals court today (with paraphrasing in brackets).

Judge Griffith to Brinkmann: What is the irreparable harm that the NIH will suffer in the absence of a stay?

Brinkmann: There are ongoing grants [on which work will have to be suspended]

Griffith: Why not just restart that process in several months?

Brinkmann: There is $64 million already invested in these projects….it involves biological material….it would be irreparably damaged.

Griffith: I suppose for some of the grantees there would be irreparable harm….is it the grantees we should be concerned with?

Brinkmann: [Eight intramural projects at NIH worth $9.5 million would also cease.] In addition the peer review process, that would have to be stopped….It certainly is irreparable harm to those individuals ….compared to speculative harm on the behalf of the plaintiffs.

Judge Kavanaugh to Brinkmann: You define research narrowly. The plaintiffs define it more broadly…..Your position is that the destruction is not part of the stem cell research?

Brinkmann: That’s correct, Your Honor.

Kavanaugh: It seems a little bit of a gerrymander approach….What is the basis for barring the funding for the derivation? It has got to be ‘research in which an embryo is destroyed.’

[Brinkmann argued repeatedly that stem cell research “cannot be read to reach back years and years” to a different place where a given line since used by multiple scientists for different projects may have been derived.]

Griffith: also established from Brinkmann that the guidelines put in place by the Obama administration in July, 2009, do not prevent a scientist who derives stem cells using private money to then study the same stem cells using federal funds. In that case, Griffith asked, “what’s the plausible reason” for splitting the derivation of the cell lines from later work on them?

“Congress is well aware” that successive administrations have operated under a policy that does split those two events, Brinkmann responded. The court’s job, she said, is simply to decide whether the district court that issued the injunction correctly read the law.

The judges were no less probing with Hungar, the attorney for the plaintiffs.

Hungar: Statutory text is to be interpreted in accordance with its plain meaning.

Judge Kavanaugh: The problem is that the text is not as plain as one might like, in either direction. [It doesn’t address whether the government can fund research on already-destroyed embryos…..The statute says] research in which an embryo is destroyed, not for which an embryo is destroyed.”

Hungar: Because embryonic stem cell research necessarily requires and involves the destruction of human embryos, it falls within [the reach of the statutory language.]

Judge Rogers: [Why should this court not focus on the fact that Dickey Wicker does not say, in reference to embryos, that they] are or have been [destroyed.] It says are [destroyed].

Hungar: [It also forbids putting embryos at increased risk of harm.] It’s perfectly clear that that’s what’s going on here.

Judge Griffith: [Some argue that] derivation…is a step preparatory to research…the same way you buy a microscope….Why isn’t that the better understanding of ‘research?’

Hungar: NIH’s own regulations [make clear that derivation is part of embryonic stem cell research.]…..

Judge Kavanaugh: Is the prior president’s policy consistent with [the Dickey Wicker Amendment]?

Hungar: [He notes that the George W. Bush policy was rescinded by the Obama administration, so no longer actually exists to be subject to the law. But, he adds:] My personal opinion is…no.

While neither attorney got off lightly, the two Republican appointees were decidedly tough on the government attorney, while Rogers, the Democratic appointee, pulled no punches with the plaintffs’ lawyer.

Others present said that the judges were equal-opportunity interrogators. Far from sparing them, the two Republican appointees “pushed [the plaintiffs’ lawyers] equally hard if not harder,” says Amy Comstock Rick, the chief executive officer of the Parkinson’s Action Network.

About 40 spectators were present, along with a handful of reporters and courtroom staff.

The timing of a decision is anyone’s guess – although court-watchers say that a ruling may come very soon, given the speed with which the case has moved from the get-go.

Separately today, the appeals court denied the University of California’s petition to join the case.

Comments

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    Ernest Whitaker said:

    With all my respect for Judge Kavanaugh, I feel compelled to say that it is the injunction requested by the plaintiffs that appears to fill the concept of a gerrymander approach.

    Firstly, the first hESCs approved by President Bush were, I believe, derived from discarded embryos. Those embryos had been targeted for “destruction” since there was not an intentional provision/intent to have them fully develop into human beings. (It happens in life also that many blastocysts died before women can even notice that conception took place). Whoever coined the term “destruction of embryos” for derivation of research material (cell lines) from IVF DISCARDED embryos might have not spent much time thinking about life and its contingencies. It would have been more appropriate and less deceitful to talk about “Rescuing DISCARDED IVF embryos” by giving them the opportunity to restore or attain full life for individuals affected by disease. That opportunity can’t happen without invaluable research material generated from embryos to be rescued. Universal panaceas don’t exist and adult stem cells do not appear to be a universal panacea.

    Second, the argument of harm for two biomedical scientists due to greater competition for federal funding sounds, indeed, like a gerrymander approach in justifying an injunction. Unfortunately, all scientists are presently and, more than ever, suffering the effects of greater competition because resources are finite and growing ever-growing more so. Using resources for pursuing legal maneuvers to alleviate scientific competition rather than fully pursuing fundamental biomedical questions is not only a gerrymander approach but also very irresponsible.

    I congratulate all the judges for their hard questioning of everybody. The matter deserves it.

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