The D.C. Circuit today upheld, for the second time in 16 months, President Obama’s Executive Order permitting the National Institutes of Health to fund human embryonic stem cell (hESC) research. The same issue was before the court last year on an appeal of a preliminary injunction that would have halted all federal funding of hESC research. After the Circuit found that the Executive Order was not contrary to law and thus overturned the preliminary injunction, the District Court reluctantly granted summary judgment on the merits of the case for the government. It is the appeal of that ruling that the Circuit decided today. The outcome was somewhat anti-climactic given the four month delay between oral argument and the opinion in a case that had already been decided: all three judges on the panel agreed that the last year’s decision constituted the law of the case and thus reaffirmed that holding.
The most interesting of today’s three separate opinions – one for the court by Judge Sentelle and concurring opinions by Judges Henderson and Rogers – was Henderson’s. Henderson was on last year’s panel (with Judges Ginsburg and Griffith) and she wrote a strongly worded dissent then. She concurred in today’s judgment on the basis of the “law of the case” reasoning, but took the opportunity to again attack last year’s majority opinion. Her legal theory of why the majority was wrong, however, apparently has changed in the last year.
To review briefly, the basis for the challenge the Obama Executive Order is the Dickey-Wicker Amendment, passed by Congress as a rider to appropriations bills every year since 1976, which prohibits federal funding of “research in which a human embryo or human embryos are destroyed, discarded, or knowingly subjected to risk of injury or death….” The plaintiffs in the litigation claimed [...]