The federal government can continue funding research using human embryonic stem cells, the U.S. Court of Appeals for the D.C. Circuit ruled today, reversing a lower court injunction against the National Institutes of Health.
Two scientists who work with adult stem cells sued NIH to stop embryonic stem cell research, charging that revised 2009 guidelines violated the 1996 Dickey-Wicker Amendment that bars federal funding for research in which a human embryo is destroyed.
In August, Judge Royce Lamberth granted their motion for a preliminary injunction, concluding they were likely to succeed at trial.
But in a 2-1 decision, the appeals court said no, calling the Dickey-Wicker law “ambigious.” The court found that the law “bars funding for the destructive act of deriving an [embryonic stem cell] from an embryo,” but it does not prohibit funding a research project in which such cells are used.
Under the Bush administration, NIH researchers could only work with stem cells from the approximately 60 then-extant cell lines derived from already-destroyed embryos. President Obama permitted the NIH to “support and conduct responsible, scientifically worthy human stem cell research, including human embryonic stem cell research, to the extent permitted by law.”
NIH issued the guidelines under fire in the suit in 2009.
The plaintiffs, Drs. James Sherley and Theresa Deisher, argued that the law “unambiguously bars funding for any project” using embryonic stem cells. The government countered that Dickey-Wicker is written in the present tense, addressing research “in which” embryos “are” destroyed, not research “for which” embryos “were destroyed.”
“The use of the present tense in a statute strongly suggests it does not extend to past actions,” wrote Judge Douglas Ginsburg, who was joined in the opinion by Judge Thomas Griffith. “Because the Congress wrote with particularity and in the present tense... it is entirely reasonable for the NIH to understand Dickey-Wicker as permitting funding for research using cell lines derived without federal funding, even as it bars funding for the derivation of additional lines.”
Judge Karen LeCraft Henderson dissented, writing, “The majority opinion has taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat,” she wrote. “I believe that the plaintiffs, researchers who use adult stem cells only, are likely to succeed on the merits of their challenge to the guidelines and that the district court did not abuse its discretion.”
Deputy Assistant Attorney General Beth Brinkmann argued the case for the government, and the scientists were represented by Gibson Dunn & Crutcher partner Thomas Hungar.