A federal appeals court in Washington seems poised to reinstate a preliminary injunction against the government, banning funding for human embryonic stem cell research.
The Justice Department wants the U.S. Court of Appeals for the D.C. Circuit to stay the enforcement of the injunction. The appeals court, which earlier issued an administrative stay to allow the court to study the dispute, heard argument Monday for more than an hour on the government’s emergency motion to stay the injunction pending appeal.
A three-judge panel grilled a Justice Department lawyer for 40 minutes, well beyond the allotted 15-minute time period, questioning both the scope of the research, the language of the federal law in question and whether there really is any harm in keeping the preliminary injunction in place.
The Obama administration is trying to salvage National Institutes of Health research guidelines that took effect last year. Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia issued an injunction in August. (In the trial court, the Justice Department late Monday filed court papers opposing the plaintiffs' motion for summary judgment.)
DOJ lawyer Beth Brinkmann, who heads the Civil Division appellate section, had barely begun her argument Monday when Judge Thomas Griffith interrupted her.
Griffith, skeptical of the government’s claim that the injunction creates any harm, and Brinkmann had a 10-minute dialogue. “If you can’t show irreparable harm, nothing else you show matters,” the judge said at one point.
Brinkmann noted millions of dollars in ongoing research is threatened. She urged the court to stay enforcement of the injunction in the interest of the public. Allowing the injunction to remain in effect, Brinkmann said, would be a setback for the field.
Judge Brett Kavanaugh questioned Brinkmann on the scope of the word “research” in exploring the extent to which human embryos are destroyed in current research the government is funding. Federal law bans funding research in which human embryos are destroyed.
Thomas Hungar, who co-chairs Gibson, Dunn & Crutcher’s appellate and constitutional law practice group, argued for the plaintiffs, Drs. James Sherley and Theresa Deisher, scientists who work with adult stem cells. Hungar argued that the government’s inability to achieve a policy goal is not a demonstration of injury.
Hungar acknowledged that projects would be shut down if the injunction holds and that there would be a cost to taxpayers to restart the work in the event the government prevails.
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