Researchers appeal embryonic stem cell ruling
Michelle Bauman

.- Adult stem cell researchers have filed an appeal in a lawsuit seeking to end federal funding for embryo-destroying stem cell research.

“There is no question that from conception there is a human being who is a member of the species homo sapien,” Samuel B. Casey, general counsel for the Law of Life Project, told CNA.

Embryonic stem cell research, he added, is “clearly human subject experimentation.”

The lawsuit had been dismissed in July by a federal judge who said that he had no choice but to defer to the U.S. Circuit Court of Appeals’ April 29 opinion. That opinion held that research on embryonic stem cells does not qualify as Congressionally-prohibited “research in which a human embryo or embryos are destroyed.”

Drs. James Sherley of the Boston Biomedical Research Institute and Theresa Deisher of AVM Biotechnology are the plaintiffs in the case. They contend that embryonic stem cell research funding violates the 1996 Dickey-Wicker Amendment, a provision included each year in the Health and Human Services Appropriations Bill.

The amendment prohibits federal funding for research in which human embryos are “knowingly subjected to risk of injury or death.”

The Notice of Appeal was filed on September 19 by Jubilee Campaign's Law of Life Project and their co-counsel at the Alliance Defense Fund and Gibson, Dunn & Crutcher.

Casey told CNA in a Sept. 23 interview that the merits of the case are clear. The problem, he explained, is that “this case as far as the Court of Appeals is concerned has nothing to do with the merits.”

Rather, he continued, the lawsuit has been bogged down with technicalities, first involving the legal standing of the plaintiff and now by a principle known as the Chevron deference doctrine, which holds that when a court believes the meaning of a statue to be ambiguous, it should defer to the government agency responsible for the statute for interpretation.

This doctrine was called into play when the Court of Appeals ruled that the meaning of the Dickey-Wicker Amendment was ambiguous. As a result, explained Casey, the court decided that each administration can determine the interpretation of the amendment, and these interpretations can change from one administration to another, even though the words of the law have not changed.

Casey said that the recent appeal is the latest step in an effort to “exhaust the judiciary possibilities” against the 2009 regulatory guidelines published by the National Institutes of Health, which allowed federal funds to be used for research on newly-created embryonic stem cell lines.

Under President Bush, taxpayer funding had been limited to 21 embryonic stem cell lines already in existence.

In August 2010, U.S. District Judge Royce Lamberth ruled that the new guidelines likely violated the Dickey-Wicker Amendment and issued a temporary injunction, suspending funding while the legality of the policy was challenged.

The U.S. Department of Justice immediately appealed Lamberth’s court order. It claimed that while Congress had prohibited funding that would risk the “injury or death” of human embryos, such a prohibition did not apply to funds used for research on the embryonic stem cells that were harvested from such the embryos.

In April 2011, a U.S. Court of Appeals panel reversed Lamberth’s injunction, holding that the meaning of the Dickey-Wicker Amendment was ambiguous. However, the original lawsuit was allowed to proceed before Lamberth.

In July, Lamberth issued a decision in which he said he must defer to the Court of Appeals’ opinion, accepting the Department of Justice’s claim that embryonic stem cell research did not knowingly subject human embryos to “risk of injury or death.”

Casey said that the case could go as far as the Supreme Court. He added that there was also a possibility of a nonjudicial alternative route after the next election, if a pro-life Congress and President decided to pass a law clarifying the ambiguities claimed to be in the current law.

While acknowledging that the plaintiffs would face “a really tough fight in the Court of Appeals,” Casey remains confident in the merits of the case.

“We still think that there is no ambiguity in the statute,” he said. “We still think we can win.”

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