Friday, April 29, 2011, the United States Court of Appeals for the District of Columbia, in a 2 to 1 decision, ruled on a preliminary injunction 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). (Read the opinion.)
Circuit Judge Karen LeCraft Henderson wrote a scathing dissent, in which she accused the majority of engaging in linguistic jujitsu by dispensing with the plain meaning of terms such as “research.”
While it is disappointing that embryo-destructive research will continue in the immediate future, this is not a final decision on the merits of the case. It is a decision on the preliminary injunction that had been issued by Judge Royce C. Lamberth on August 23, 2010 to halt funding for embryo-destructive research while the case was being considered. On September 9, 2010, the U.S. District Court of Appeals for the D.C. Circuit granted an administrative stay, temporarily lifting the preliminary injunction. Today’s court decision allows federal funding of embryo destructive research to continue until the case is decided by the US District Court for the District of Columbia.
Polling Information — 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 American’s are less likely to believe embryo-destructive research is morally wrong, a majority oppose federal funding for the research.
Background on Sherley v. Sebelius
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. (National Institutes of Health Guidelines were finalized on July 7, 2009.) The Dickey-Wicker Amendment, language attached to the annual Labor Health Human Services 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 case Sherley v. Sebelius sought to bring federal funding into line with the Dickey-Wicker amendment. On August 23, 2010, the US District Court for the District of Columbia issued a preliminary injunction, ruling that there was sufficient evidence to warrant halting funding for embryo-destructive research while the case was under consideration. Specifically, the court found that the plaintiffs presented a strong case that NIH Guidelines for Embryonic Stem Cell Research (hESCR) violate the Dickey-Wicker Amendment.
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 . . . 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. § 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).” Pub. L. No. 111-8, § 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.”
On August 31, 2010 the Obama 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 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. As mentioned above, 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.