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Latest briefs in US stem cell lawsuit filed


Proponents and opponents of US government funding for human embryonic stem cell (hESC) research have filed what may be their final arguments to the judge who shut down the research for 17 days last August and September.

Briefs were filed today by both sides in Sherley et al. v. Sebelius, the landmark lawsuit challenging the legality of government support for the controversial research.

Lawyers for the plaintiffs, adult stem cell reseachers James Sherley and Theresa Deisher, argued in this brief that government funding of the research “inevitably” creates an incentive for more embryos to be destroyed. They write:

“Each time grant-awarding officials and federally funded scientists support or engage in hESC research, they `knowingly subject’ human embryos `to risk of injury or death,’ in violation of [existing law.]. The federally sponsored hESC research…inevitably creates a substantial risk—indeed, a virtual certainty—that more human embryos will be destroyed in order to derive more hESCs for research purposes.”

Lawyers representing Kathleen Sebelius, the secretary of Health and Human Services, anticipated the plaintiffs’ argument in this brief. They write that, this spring, an appeals court

“held that [existing law] is ambiguous, and that [the National Institutes of Health] had reasonably read the statute to permit the funding of hESC research but to forbid funding for the derivation of hESCs. Plaintiffs, presumably, will now switch gears and advance an alternative theory that [existing law] forbids any actions that `incentivize’ the destruction of embryos.”

That argument is beside the point, the Sebelius brief continues, because the derivation of stem cell lines, which must be funded with private money, is legally distinct from actual research on those lines.

“Whether or not plaintiffs are correct to speculate that the [NIH] Guidelines or `media portrayals’ will encourage patients of IVF clinics to donate embryos, that donation is still not `research in which’ an embryo is knowingly subjected to a risk of injury or death.”

Both documents were filed with Chief Judge Royce Lamberth (pictured) of the U.S. District Court for the District of Columbia.

Lamberth last August 23 issued a preliminary injunction that stopped the National Institutes of Health (NIH) from funding the research and threw the field into intense, if temporary, chaos. He argued that an existing law, called the Dickey-Wicker amendment, is “unambiguous” in prohibiting federal support for the research, which relies on stem cell lines that are obtained by destroying embryos. The Dickey-Wicker amendment bans funding for research “in which a human embryo or embryos are destroyed.”

In early September, 2010, the government won a temporary stay of the preliminary injunction from the Court of Appeals for the District of Columbia Circuit. Then, in April, a three-judge panel of the same appeals court overturned the preliminary injunction for good, arguing in this 2-1 decision that Dickey-Wicker is in fact ambiguous. That was a key finding because, to win a preliminary injunction, the plaintiffs must demonstrate to the court that their case is likely to succeed when it is heard on its merits.

Having denied the preliminary injunction, the appeals court sent the substance of the case back to Lamberth’s court, where a decision from the judge is now awaited.

The plaintiffs argue in their brief that, despite the appeals court’s decision, Lamberth is free to again find that the NIH’s funding of the research violates the Dickey-Wicker amendment. They write: “Nothing in the D.C. Circuit’s divided ruling vacating the preliminary injunction changes this Court’s correct conclusion that Defendants’ interpretation is inconsistent with the statute’s text, structure, and common sense.”

Lamberth could next do several things. He could ask the lawyers for both sides to make oral arguments before him. With or without oral arguments, he could grant summary judgment, which both sides have requested, meaning that he would decide the case before him without a trial. Or, he could call for a full trial, an outcome that’s considered unlikely.

If Lamberth grants summary judgment in favor of either side, the losing lawyers will certainly appeal his decision to the court of appeals, ensuring still more months of briefings and arguments to come. The loser at the appeals court level would likely ask the Supreme Court to hear the case.

One thing is now clear: the plaintiffs will not ask the entire Court of Appeals for the District of Columbia Circuit to re-hear their case for the preliminary injunction in a so-called en banc hearing.

“It seems to use just as a matter of judicial efficiency [that] it’s best to just bring this case to the District Court and let them decide the whole thing,” Samuel Casey, a member of the plaintiff’s legal team said today. “Because even if we went for rehearing we would at best get a hearing on one very small piece of the case.”

Casey, of the Law of Life Project in Washington, D.C., contends that the appeals court’s rejection of the preliminary injunction was made on narrow grounds that did not encompass other arguments made by the plaintiffs. Those, he says, are arguments that Lamberth will now need to consider.


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