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Plaintiffs in US stem-cell case try again

Posted on behalf of Meredith Wadman.

The two adult stem-cell scientists who are attempting to put a halt to US government funding of human embryonic stem-cell research filed briefs today in a high-ranking US court that will hear oral arguments in the case in April.

Lawyers for James Sherley, a senior scientist at the Boston Biomedical Research Institute, and Theresa Deisher, the chief executive of AVM Biotechnology in Seattle, Washington, submitted this brief to the US Court of Appeals for the District of Columbia Circuit, where a three-judge panel is set to hear oral arguments in Sherley et. al. v. Sebelius on 23 April.

Sherley and Deisher are appealing a July ruling by a lower court. Then, Chief Judge Royce Lamberth of the US District Court for the District of Columbia decisively rejected arguments that an existing law, the Dickey–Wicker amendment, makes it illegal for the government to fund the human embryonic stem-cell research. In September, Sherley and Deisher appealed that ruling to the District of Columbia Circuit, an appeals court that is one level below the US Supreme Court. That appeal set in motion today’s filing and the upcoming oral arguments.

The brief filed today reiterates Sherley and Deisher’s central assertion: that, by funding the research, the government is violating a provision that has been part of US law since 1996. The rules in place for federal funding of the research “violate the Dickey–Wicker amendment by funding research in which an embryo is destroyed or knowingly subjected to risk of injury or death”, they write. “Congress ‘says in a statute what it means and means in a statute what it said there’,” they add, citing an earlier, unrelated legal opinion.

The current court has already heard the case before. In April 2011 it reversed a preliminary injunction that had temporarily shut down government funding for the research for 17 days in 2010.

But the randomly selected, three-judge panel that will hear the appeal this coming April is different from the three-judge panel of the same court that decided the preliminary injunction in favor of the US government in April 2011.

“The random draw could have included judges who had voted or opined in favor of our position earlier — and that did not happen,” says Tony Mazzaschi, a member of the Coalition for the Advancement of Medical Research (CAMR), a group of universities and organizations that supports federal funding for human embryonic stem-cell research. “It is what it is, though, and I’m sure we’ll get a fair hearing,” adds Mazzaschi, who is also senior director, scientific affairs at the Association of American Medical Colleges.

The three judges that will hear the case in April, all appointees of Republican presidents, are: Chief Judge David Sentelle, Judge Janice Rogers Brown and Judge Karen LeCraft Henderson.

It was Henderson who, in a lone, vociferous dissent from her colleagues in April 2010, accused them of “linguistic jujitsu”  for interpreting the Dickey–Wicker amendment to allow funding of the research. The amendment states that the government may not fund “research in which” an embryo or embryos are destroyed or discarded, as happens during the derivation of human embryonic stem cells. Henderson said that, by separating the destructive act from the research that follows, the other two judges were taking a “straightforward case…and producing a result that would make Rube Goldberg tip his hat.”

Legal experts note that, after the case is argued, a decision from the bench may not follow for months, stretching the court battle into the fall presidential election season. They also note that even the best possible outcome for supporters of human embryonic stem-cell research — a clear affirmation from the court that Dickey–Wicker allows the government to fund the research — would not provide iron-clad protection for scientists who rely on federal funding.

If Republicans win back the White House, “there would be nothing, unfortunately, stopping the next president from issuing another executive order with a different policy”  than Obama’s permissive one, says Amy Comstock Rick, a lawyer who is president of the CAMR.

‘Friend of the court’ briefs, from organizations supportive of Sherley and Deisher’s cause, are due to be filed by 27 January, and the government’s written counter-arguments must be filed by 27 February; Sherley and Deisher will then have until 12 March to retort to the government’s arguments.


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