A US appeals court today heard arguments from lawyers supporting and opposing the US government’s funding for human embryonic stem-cell (hESC) research, marking another step in what some believe is a slow but steady path to the US Supreme Court.
The panel of three judges of the US Court of Appeals for the District of Columbia Circuit — one level below the nation’s highest court — spent 34 minutes at a modestly attended hearing weighing the legal questions raised by Ryan J. Watson and Beth Brinkmann (pictured), lawyers for the plaintiffs and the government, respectively, in Sherley versus Sebelius et al. The lawsuit, filed in 2009, challenges the legality of the funding by the National Institutes of Health (NIH) of hESC research. Its plaintiffs, adult-stem-cell researchers James Sherley, a senior scientist at the Boston Biomedical Research Institute in Watertown, Massachusetts, and Theresa Deisher, the chief executive of AVM Biotechnology in Seattle, Washington, argue that US funding, which began in 2001, is illegal because it breaks a 16-year-old law, the Dickey–Wicker amendment. The law bars the US from supporting research in which a human embryo is “destroyed, discarded, or knowingly subjected to risk of injury or death”. The creation of an hESC line involves embryo destruction.
Today, the judges focused on important but arcane legal questions, rather than discussing the nature of hESC science and research, as did a lively hearing at the same Court of Appeals in December 2010.
Primary among the questions today was whether the current panel of three judges are “controlled” by the findings of a different three-judge panel of the same court, which ruled a year ago. Then, the panel was deciding whether to overturn a preliminary injunction that would have shut down federal funding for hESC research while the case wound its way through the courts. That panel threw out the preliminary injunction in an April 2011 decision, on the grounds that Sherley and Deisher are unlikely to prevail in convincing the courts that funding for the research violates Dickey–Wicker. Last summer, lower-court judge Royce Lamberth agreed, ruling decisively against Sherley and Deisher and setting up today’s appeal.
The panel’s conclusion last April was based on a legal precedent known as the Chevron defence, in which, if the wording of a law is ambiguous, deference is granted to the government’s “reasonable” interpretation of that law. The court’s opinion at that time is at the heart of this case:
“We conclude the plaintiffs are unlikely to prevail because Dickey–Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey–Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used.”
Today, Watson, of Gibson, Dunn & Crutcher in Washington DC, argued for Sherley and Deisher that the current Appeals Court panel is not bound to agree with the earlier panel’s decision. Indeed, he noted that, under a 38-year-old precedent in a case called Berrigan v. Sigler:
“The decision of a trial or appellate court whether to grant or deny a preliminary injunction does not constitute the law of the case for the purposes of further proceedings and does not limit or preclude the parties from litigating the merits decided.”
That 1974 case goes on to say that this doesn’t mean that the earlier findings “cannot be persuasive for their reason and authority”.
This is precisely what Brinkmann, the lawyer representing the government, argued. “This court’s earlier opinion provided an authoritative interpretation of the law that applies here,” she said. It’s “an authoritative construction that this court should adhere to.”
Chief Judge David Sentelle, one of the three judges on the panel, pushed back, saying that Berrigan seems pretty clearly to say that the current panel isn’t controlled by its predecessor’s findings.
Brinkmann responded that those findings were not “some back-of-the-envelope” decision, and that the opinion was “persuasive.”
But the opinion was also split, Sentelle retorted, noting the 2–1 decision a year ago.
That means, Brinkmann replied, that the decision was reached by “robust” debate.
The plaintiffs’ lawyer, Watson, was a legal clerk for Judge Janice Rogers Brown, another of the three judges who heard the case.
He was challenged by Sentelle when he presented another legal argument for the plaintiffs: that the NIH violated the Administrative Procedures Act by failing to respond to tens of thousands of comments that protested guidelines that the agency published in 2009, setting up the procedures by which the agency would determine which hESC lines are eligible for funding.
“Somehow,” Watson argued, the NIH failed to respond to those comments.
“Not ‘somehow’ [but] ‘therefore,’” Sentelle retorted. “They did not have to respond,” because the comments were not going to the question of how the research should be funded, which the NIH had posed, but of whether it should be funded.
The third judge on today’s panel, Karen LeCraft Henderson, was the lone, vocal dissenter on the earlier three-judge panel that threw out the preliminary injunction a year ago. She called her colleagues’ reasoning at the time “linguistic jujitsu”. Today, she did not ask a single question.
Partisans on both sides offered optimistic assessments after the hearing.
“I was pleased to hear the amount of time spent on the issue of [whether the previous panel’s decision is binding on the current panel] — because the prior Court of Appeals decision did spend a great deal of time analyzing the fundamental Dickey–Wicker issue. And of course we think they analysed it correctly,” says Amy Comstock Rick, the president of the Coalition for the Advancement of Medical Research based in Washington DC, which filed a friend-of-the-court brief on the side of the government.
Similarly, “We are quite encouraged,” says Samuel Casey of the Law of Life Project, a legal group also based in Washington DC and allied with Sherley and Deisher. “Judge Sentelle, who has never been on this panel… asked very telling questions” about whether the court is bound by its prior panel’s decision, he noted. He took these as a signal that the current panel does not think it must adhere to that panel’s decision.
Whatever the outcome when today’s panel issues a decision several months from now, adds Casey, “I would think that a petition [to the Supreme Court] would be likely.”