A challenge to funding of human embryonic stem-cell studies should be dismissed after an appeals court found the government-backed research to be lawful, the Obama administration said.
The Justice Department in a filing today urged U.S. District Judge Royce Lamberth to end a lawsuit that seeks to block the U.S. Health and Human Services Department and the National Institutes of Health from spending federal funds on researching human embryonic stem-cells, known as hESC.
Last year, Lamberth temporarily barred U.S. agencies from funding human embryonic research, finding it likely violated a 1996 law called the Dickey-Wicker Amendment. The law prevents the government from spending money on research where a human embryo is damaged or destroyed.
The U.S. Appeals Court in Washington in a 2-1 ruling in April said the funding may continue while Lamberth considered the merits of a challenge filed by two doctors.
“The court of appeals has conclusively resolved the primary claim that plaintiffs have advanced in this case,” the U.S. said in today’s filing. “The court held that Dickey-Wicker is ambiguous, and that NIH reasonably read the statute to permit funding of hESC research but to forbid funding for the derivation of hESCs.”
The doctors who brought the lawsuit asked Lamberth again today to block the funding, arguing that the appeals court only considered one of their arguments.
‘Risk of Injury’
“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 Dickey-Wicker,” the doctors said in their filing.
In fiscal 2010, NIH spent about $200 million to fund more than 200 human embryo research grants, the Justice Department and the institutes’ director, Francis Collins, said in court papers.
Embryonic stem cells can grow into any of the 200 types of cells in the human body. Scientists say these cells have the potential to be used for repairing cells damaged by injury or disease.
President Barack Obama in March 2009 opened up government funding for the study of embryonic stem cells when he reversed an executive order of his predecessor, George W. Bush, limiting research to about 20 existing lines of the cells.
In response to Obama’s order, the NIH wrote guidelines allowing research on cells derived from embryos that would otherwise be disposed of following in vitro fertilization procedures.
James Sherley, a researcher at Boston Biomedical Research Institute, and Theresa Deisher of Seattle won the right to sue by claiming they were unfairly disadvantaged in competing for NIH funding with researchers who used embryonic cells.
The government said the stem-cell research is separate from any that destroys the embryo because the cells must be grown in a medium and are then “differentiated” into other cells, such as nerve cells.
The appeals court agreed with the government’s contention that because the Dickey-Wicker Amendment is written in the present tense the “statute strongly suggests it does not extend to past actions.”
In a dissenting opinion, Judge Karen LeCraft Henderson accused her colleagues on the three judge panel of “linguistic jujitsu” in parsing verb tenses in order to narrow the amendment’s meaning from what Congress intended.
The plaintiffs’ challenge is likely to succeed because the amendment prohibits federal funding of embryonic stem cell research “in all of its sequences,” LeCraft Henderson wrote.
Since 2002, the government has spent $546 million on human embryo research, Collins wrote in an Aug. 31 court filing. If the ban were upheld, Collins said, it would result in the loss of more than 1,300 full-time or part-time jobs, as well as “the potential loss of top U.S. scientific talent as lead scientists may be forced to move to other countries to pursue their cutting-edge research.”
Stem-cell researchers are seeking cures for illnesses such as Parkinson’s disease, spinal cord injuries, and genetic conditions. Embryonic stem cells can grow into any kind of tissue and may have the potential to accelerate a range of research.
The original case is Sherley v. Sebelius, 1:09-cv-01575, U.S. District Court, District of Columbia (Washington). The appeal case is Sherley v. Sebelius, 10-5287, U.S. Court of Appeals for the District of Columbia Circuit (Washington).
By Tom Schoenberg