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Stem cell plaintiffs argue for return of injunction — UPDATED

Scale_of_justice.pngThe first of two court documents expected today regarding the ongoing lawsuit on the legality of federal funding of embryonic stem cell research has been filed.

The document, filed on behalf of plaintiffs James Sherley and Theresa Deisher to the US Court of Appeals in Washington, DC, lays out arguments for why that court should reinstate a ban on the government’s human embryonic stem cell funding policy that was issued in August by a lower court.

That ban was issued by Judge Royce Lamberth of Washington DC’s district court on 23 August. It was intended as a preliminary measure that would hold while the case was in progress, but it implied that the judge accepted the plaintiffs’ arguments and was likely to rule in their favor.

The government appealed this preliminary injunction, however, and the appeals court agreed to consider the issue, temporarily lifting the injunction while it does so.

The appeals court asked the defendants and the plaintiffs to lay out their written arguments by 14 October and 28 October, respectively. The government must file an additional counter-reply on 4 November, and the court will then hear oral arguments at an as-yet-undecided date soon thereafter.

The 96-page document filed today covers essentially the same ground as before. The plaintiffs argue that they are likely to prevail in the case because the government’s policy contradicts the Dickey-Wicker amendment, a law forbidding funding for research that involves the destruction of human embryos, and that the National Institutes of Health ignored a slew of public comments against the policy, therefore failing to follow mandated procedures. They also contest the government’s claims about the harm caused by the injunction and dismiss as “baseless” the arguments in a brief filed last week by the University of California in support of the NIH.

Whatever the appeals court decides about Lamberth’s preliminary injunction will be made moot, however, by Lamberth’s final ruling on the case, which is expected in the near future. Upon request by plaintiffs, Lamberth agreed to consider a so-called summary judgment, deciding the case based on each side’s arguments so far.

Based on the timetable Lamberth laid out, plaintiffs filed their arguments for Lamberth’s consideration earlier this month and the defendants are expected to do so today. The judge will then either rule for one of the parties, or decide that he needs more information to make the decision and take the case to trial.

For full coverage of the case, see Nature’s Stem Cell Injunction Special.

UPDATE (10/28): The government this evening filed its motion for summary judgment to the US District Court in Washington DC. The document, which you can find here, also mostly reiterates some well-trodden arguments, specifically that: 1) the plaintiffs are not in fact harmed by the Obama administration’s stem cell policy; 2) the Dickey-Wicker is not unambiguous, and has been read for more than a decade to allow human embryonic stem cell research, 3) NIH did not contravene procedural requirements in forming the policy, and 4) that an injunction would legally inappropriate. Now that all the District Court paperwork is, all eyes will be on Lamberth as he makes his ruling.


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