WASHINGTON, D.C. — On Wednesday, July 27, 2011, Judge Royce C. Lamberth for the U.S. District Court for the District of Columbia, issued his ruling against the plaintiffs, in the Sherley v. Sebelius case.
As you may know, this case has been filed by adult stem cell researchers who contend that President Obama’s embryo-destructive stem cell research funding policy violates the ban on federal funding for research that involves harming or destroying embryos (Dickey-Wicker).
Attached you will find the Court’s opinion, order and judgment. Here is an excerpt of Judge Lamberth’s opinion issued today:
“The Court’s determination that it is bound by the D.C. Circuit’s conclusion that “research” in the Dickey-Wicker Amendment is ambiguous as a matter of law is buttressed by the fact that plaintiffs haven’t offered any new information or reasoning that was unavailable to the D.C. Circuit and that would cause this Court to consider departing from that Court’s holding as to the meaning of “research.” This issue was carefully briefed and argued before both this Court and the Court of Appeals, and the only thing that has changed since this Court first considered the question of whether “research” in the statute is ambiguous is that the D.C. Circuit has made it abundantly clear that the term is ambiguous as a matter of law. While it may be true that by following the Court of Appeals’ conclusion as to the ambiguity of “research,” this Court has become a grudging partner in a bout of “linguistic jujitsu,” Sherley, 2011 WL 1599685, at *10 (Henderson, J., dissenting), such is life for an antepenultimate court.” (pg 21)
For background information on stem cell policy and the court case please see below.
In 2001 President Bush established a policy allowing research on embryonic stem cell lines created prior to August 9, 2001. On March 9, 2009, President Obama issued an executive order overturning the Bush policy and allowing taxpayer funding for research on embryonic stem cell lines created after 2001. (NIH Guidelines were finalized on July 7, 2009)
Embryo Destructive Research Funding Ban (Dickey-Wicker)
The Labor-HHS appropriations bill includes a ban on research in which human embryos are destroyed or harmed. (enacted in FYs 1996-2010) TEXT: FY10, Division D, Title V, General Provisions SEC. 509. (a) None of the funds made available in this Act may be used for- (1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 CFR 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)). (b) For purposes of this section, the term “human embryo or embryos” includes any organism, not protected as a human subject under 45 CFR 46 as of the date of the enactment of this Act, that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells.
Sherley v. Sebelius
On August 23, 2010, the US District Court for the District of Columbia issued a preliminary injunction in the case Sherley v. Sebelius, ruling that there is sufficient evidence to warrant halting funding for embryo-destructive research while the case is under consideration. Specifically, the court found that the plaintiffs presented a strong case that NIH Guidelines for Embryonic Stem Cell Research (ESCR) violate the Dickey-Wicker Amendment-language attached to the annual LHHS appropriations bills since 1996, which prohibits federal funding for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death…” The injunction put NIH funding for embryo-destructive research on hold. District Court Judge Royce C. Lamberth in his ruling stated “(Embryonic stem cell) research is clearly research in which an embryo is destroyed,” and “Congress has spoken to the precise question at issue-whether federal funds may be used for research in which an embryo is destroyed. The Dickey-Wicker Amendment provides that no federal funds shall be used for ’research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 C.F.R. =A7 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).’ Pub. L. No. 111-8, =A7 509(a)(2). Thus, as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on ’research in which a human embryo or embryos are destroyed.’” (pg 10, 1212)
The Court Order stated the Federal government is “enjoined from implementing, applying, or taking any action whatsoever pursuant to the National Institutes of Health Guidelines for Human Stem Cell Research, 74 Fed. Reg. 32,170 (July 7, 2009), or otherwise funding research involving human embryonic stem cells as contemplated in the Guidelines.” On August 31, 2010 the Administration unsuccessfully appealed Judge Lamberth’s ruling. Also on August 31, 2010 the Administration filed a motion to stay the preliminary injunction. Judge Lamberth denied the motion, and the administration appealed.
On September 9, 2010 the District Court of Appeals granted an administrative stay which reads, in part, “The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the emergency motion for stay and should not be construed in any way as a ruling on the merits of that motion.” On September 3, 2010, the plaintiffs, James Sherley and Theresa Deisher issued declarations and filed a memorandum in opposition to the motion to stay. The District Court of Appeals made their final decision on April 29, 2011, overturning the preliminary injunction, allowing federal funding of embryo destructive research to continue until the case is decided by the US District Court for the District of Columbia.
On July 27, 2011, Judge Lamberth denied Sherley and Deisher’s motion for summary judgment and granted the Defendants’ motion for summary judgment. Thus ruling against the plaintiffs.
Polling Information and Opposition to Taxpayer Funding
A Rasmussen Poll released on Friday, August 27, 2010, reveals that “only 33% of U.S. voters believe that taxpayer money should be spent on embryonic stem cell research” and 57% of those polled OPPOSE taxpayer funding for controversial stem cell research that requires destruction of human embryos. The poll demonstrates that while Americans are less likely to believe embryo-destructive research is morally wrong, a majority oppose federal funding for the research.