Following the August 23 preliminary injunction issued by federal District Court Judge Royce Lamberth to block NIH funding of embryonic stem cell research, the Justice Department filed a motion requesting that the injunction be stayed pending an appeal to the D.C. Circuit. In a very short, 2-page order this afternoon, Judge Lamberth denied the stay motion.
Lamberth’s decision is not surprising, given that the issues at the root of both a motion for a preliminary injunction and a motion for a stay order are essentially the same: the court must weigh (1) the relative harm that each side would suffer if they ultimately prevail on the underlying merits of the dispute but are precluded from acting in the way desired while the underlying issue wends its way through the legal system and (2) the “irreparable” nature of such harm. I believe Lamberth’s ruling today is legally incorrect, for the same reasons articulated in my August 25 post analyzing the preliminary injunction. I won’t rehash those arguments in their entirety, but a couple of points bear noting in light of today’s order.
For practical purposes, the most important point in today’s order — and the one that should be the lead in tomorrow’s newspapers — is Lamberth’s surprising statement that his injunction does not prohibit the NIH from continuing to fund embryonic stem cell research that was permitted by the Bush Administration under its restrictive rules. This is a silver lining for some stem cell researchers, because it means that research projects on the 21 Bush-approved stem cell lines that has been ongoing for as long as eight years need not be shut down. But it completely undermines the reasoning of Lamberth’s decision on the merits of the case, and helps to illustrate why it should be overturned on appeal.
To briefly review, Lamberth ruled that the Congressionally approved, recurring Dickey-Wicker Amendment, which prohibits federal funding of “research in which…embryos are destroyed…” extends to the funding of research on embryonic stem cell lines, which are created by removing cells from 5-day old human embryos (thereby destroying the embryos) but thereafter replicate themselves in culture without any further involvement of embryos. Lamberth’s reasoning is that “research” is a very broad concept, such that a grant applicant seeking to work with embryonic stem cells is engaged in the same “research” as the non-applicant who, at a prior date, created the original stem cell line.
The Bush Administration funded embryonic stem cell research only when the cell lines used had been created prior to 2001, whereas the Obama Administration last year expanded funding to embryonic stem cell research that uses cell lines that the government has verified were originally created from embryos left over from in vitro fertilization efforts, regardless of when the cell lines were produced. There is nothing in Lamberth’s reasoning that would distinguish between cell lines created before or after 2001. If researchers who work Obama-approved cell lines are engaged in the same “research” as the scientists who created the cell lines, researchers who work on the 21 Bush-approved cell lines are engaged in the same “research” as the scientists who created those lines.
Judge Lamberth apparently recognizes this logical inconsistency, because he attempts two subtle rhetorical devices in today’s order to try to blunt this criticism. First, he notes that the “Plaintiffs agree that this Court’s order does not even address the Bush administration’s guidelines.” But if Bush allowed funding of A, Obama allowed funding of A and B, and Judge Lamberth finds that the law prohibits funding of A and B, it is hard to understand how the NIH may continue to legally fund A, just because the plaintiffs’ complaint was focused on the Obama rules rather than the Bush rules. Second, Lamberth points out that the Bush rules allowed research only on “existing stem cell lines, foreclosing additional destruction of embryos.” This distinction might matter if Lamberth’s underlying reasoning were that the Dickey-Wicker Amendment prohibits funding of research projects that might create an incentive to destroy embryos in the future, but this is not at all his reasoning. His entire argument is retrospective, not prospective: that research on a stem cell line is the same research project as the prior creation of the line. (By the way, Lamberth’s attempted distinction is factually questionable as well, because the Obama rules only allow funding of research on lines derived from embryos that would otherwise be destroyed anyway; thus, they do not actually create an incentive to increase the number of embryos destroyed).
Lamberth’s order today also attempts to narrow the scope of his August 23 decision by saying that the injunction does not prohibit NIH from maintaining its Human Embryonic Stem Cell Registry and from funding induced pluripotent stem cell (iPSC) research. (iPSCs are adult cells reprogrammed to behave like embryonic stem cells). Again, this is hard to square with the breadth of his reasoning. Embryonic stem cell lines are necessary for the maintenance of a registry, and they are necessary for iPSC research, because the iPSC cells must be compared to embryonic stem cells to determine if the former are behaving like the latter (as is the goal). Lamberth’s reasoning is that it is illegal for NIH to fund any research that uses embryonic stem cells. It logically follows from this premise that funding the registry and iPSC research are illegal.
One other interesting element of today’s order is a point on which Lamberth is completely silent. In its brief requesting the stay, the Justice Department compared the potential harm to the plaintiffs if the stay were granted pending appeal to the potential harm that would result if the stay were not granted. On the former side of the equation, the Justice Department presented two new facts, of which I was not previously aware: that one of the two plaintiffs claiming harm from having to face increased competition for grants from allegedly illegal embryonic stem cell research grant proposals has recently been awarded an NIH grant, and that the other plaintiff who claimed the harm of increased competition has never applied for an NIH grant! These facts, provided in an affidavit by NIH head Francis Collins, suggest that the likelihood that the plaintiffs would suffer any real harm if the stay were lifted until the merits of the case are resolved is vanishly slight. Yet Lamberth completely ignores them.
The only defense of today’s decision offered by the order is that “a stay would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment.” The problem with resting the denial of the stay solely upon his interpretation of Dickey-Wicker is that, if the legal question concerning whether a stay were appropriate were supposed to be exactly the same as the question concerning the proper interpretation of Dickey-Wicker, we wouldn’t need a separate legal process for considering the stay.
Guy says:
No link to the order, or to your original post? Us spoiled commenters don’t like to have to type things into search windows ourselves.
September 7, 2010, 8:42 pmOrenWithAnE says:
Wait, you mean courts are restricted to ruling on the case or controversy in front of them? Sacre Bleu!
September 7, 2010, 9:02 pmLC says:
Um, aren’t the rules for federal stays pretty much judge-made in the first place? A conservative judge might believe that implementing the will of Congress should take priority…
September 7, 2010, 9:19 pmDilan Esper says:
Wait, you mean courts are restricted to ruling on the case or controversy in front of them? Sacre Bleu!
That doesn’t really mean what you seem to think it means.
September 7, 2010, 9:58 pmArthur Kirkland says:
Curious circumstances, although there might have been slim pickings among prospective plaintiffs because of the “scientists who object to science” qualification.
Can anyone explain why the plaintiffs would have refrained from objecting to the “Category A” research (pre-Obama use of embryonic stem cell-related material)?
It is difficult to understand the plaintiffs’ motivation. One of them has never engaged in the competition feared, and both seem to have passed on a chance to effect their ostensible goal (preventing research they dislike because it involves embryonic stem cells).
The trial should be interesting (unless Congress stops enacting the stifling legislation), sending the plaintiffs and Judge Lamberth into mootdom.
September 7, 2010, 10:04 pmRoger says:
There is no inconsistency. It was widely believed for years that the Bush policy allowed about as much embryonic stem cell research funding as was possible under the Dickey-Wicker Amendment. Nobody challenged that view in court. Then Obama expanded the funding, and this judge says that he overstepped the Dickey-Wicker Amendment.
Now maybe you disagreed with Bush’s compromise, but it was widely regarded as legal by both Democrats and Republicans, and this judge is not challenging it.
September 8, 2010, 1:43 amPeter Gerdes says:
Seems pretty straightforward to me. Both plaintiffs almost certainly have religious/moral objections to the destruction of embryos (for instance they might buy into the catholic dogma equating destruction of embryos with murder). They have no desire to stop research on the stem cell lines approved by Bush since that research won’t result in further destruction of embryos while a rule which allows federal funding for research on stem cell lines not currently in existence incentivizes private institutions to create such cell lines destroying more embryos in the process.
September 8, 2010, 2:25 amPeter Gerdes says:
Perhaps Lamberth’s view can be put more charitably as follows:
Often research in a particular area is a collaborative effort between many different public and private institutions. Moreover, often which institutions contribute which pieces to the overall research project is fairly flexible but the government shouldn’t be able to circumvent restrictions on federal funding for certain kinds of research by offering to trade sub-projects with private institutions so the private institutions perform all the sub-projects running afoul of federal law.
For example suppose there was a major biotech company which was doing (and publishing) research on theraputic applications of embryonic stem cells as a treatment for Alzheimers because they hoped to use this research to commercialize their patented method of safely moving stem cells across the blood brain barrier. Now the government wants to create some new embryonic stem cell lines for it’s scientists to work with but is barred by law. Would it be kosher for the NIH to approach this biotech company and offer to have NIH funded scientists take over the research the biotech company was doing on applications to Alzheimers if the biotech company created some more stem cell lines for the NIH scientists to use?
That seems fishy to me. If the law bars the government from funding a certain kind of research doesn’t that imply the government can’t indirectly fund that research simply by trading projects with private groups? I suppose this is what the Judge was thinking. In particular he might be saying that when government funding for a particular area of interest implicitly calls for private institutions to pursue certain projects in support of the government’s projects those projects ought to be regarded as if they were part of the federally funded research.
This also justifies the judge’s decision to not to invalidate funding for research on the Bush approved stem cell lines. He feels that these stem cell lines were genuinely created independently and not as a result of an implicit request by the NIH for private institutions to step up and provide the stem cell lines the government is barred from creating.
September 8, 2010, 2:44 amSmooth, like a Rhapsody says:
I am sure there is a one-word exclamationistic epithet to describe Lamberth’s behavior…but I can’t think of one right at the moment.
September 8, 2010, 10:05 amOrenWithAnE says:
Judges don’t challenge anything. The plaintiffs didn’t challenge the Bush-era rules and hence the judge simply cannot rule on them.
When Obama revises the rules (unless Congress acts) there will be another case on whether the revised rules comply with the statute.
September 8, 2010, 10:20 amADF Alliance Alert » Commentary on Judge’s denial of stay on stem cell research injunction says:
[...] Korobkin writing at The Volokh Conspiracy: “Following the August 23 preliminary injunction issued by federal District Court Judge Royce [...]
September 8, 2010, 1:33 pmGuy says:
I thought the plaintiffs had competitor standing? Maybe I should look at the case again.
September 8, 2010, 1:37 pmzuch says:
I think you meant “silly, unprincipled, and ultimately unsatisfactory to both sides”.
Cheers,
September 8, 2010, 4:48 pmJakeD says:
If anyone other than “zuch” cannot understand the difference between Bush allowing stem-cell research on embryos (human beings) who were already killed PAST TENSE vs. Obama expanding stem-cell research to include embryos (human beings) who are not yet killed FUTURE TENSE, please let me know ; )
September 9, 2010, 2:04 pmGeorge A says:
Both plaintiffs expressed “moral” objections to the expanded research. Look at two doctrines of ensoulment: “The immortal soul enters the product of conception at the moment of conception” aka “Life begins at conception” vs. “A new human life begins at birth”. Under the former, embryonic destruction is “murder”. Certain clergy sources try to promote this view in statutes re both abortion and stem cell research. So which religious organizations (or fronts therefor) had the attorneys hunt up these two plaintiffs? (See UPI.com story, “Doctors in stem cell case speak out”, Published Sept 2, 2010 at 11:40 A.M.)
September 9, 2010, 3:34 pmSeems likely that there’s some mischief re enforcing a particular religious doctrine through the (case) law.
Finally, why does increased (scientific) competition for grants provide standing to sue? Even if it does, does the government argue on appeal that the new information that neither plaintiff has been harmed destroy their standing to sue?
Anthony says:
So, appears the court of appeals disagreed with the decision not to apply a stay.
September 9, 2010, 4:33 pmRyan W. says:
Aren’t many or all of those Bush approved ESC lines contaminated with murine (mouse) cells making them unusable?
September 11, 2010, 3:31 pm