Stalemate in Stem Cell Battle

Last Friday, the D.C. Circuit voted 2-1 in Sherley v. Sebelius to reverse the preliminary injunction against federal funding of embryonic stem cell research granted by Judge Royce Lamberth of the federal District Court for the District of Columbia. While this seems on its face like a victory for proponents of the research, and was largely reported as such, I view its likely impact as prolonging the stalemate.

A quick recap of the issues (which I blogged about in greater detail last August here and here): Every year Congress includes a provision, known as the Dickey-Wicker Amendment, in its appropriation of funds for medical research that prohibits federal funding of “research in which” human embryos are destroyed. Three presidential administrations have interpreted this language as permitting funding of research on cultures of embryonic stem cell, as long as no federal funds are used to create such cultures in the first place (which requires the destruction of an embryo). Judge Lamberth enjoined such funding based on (a) his interpretation of the Dickey-Wicker Amendment as unambigiously prohibiting funding of any research involving embryonic stem cells and (b) his determination that the plaintiffs (researchers applying for federal funds for non-embryonic stem cell research) would suffer “irreparable harm” if funding were to continue before a final ruling on the merits. The D.C. Circuit quickly stayed the prelimary injunction pending its resolution of the appeal.

In last week’s ruling, the majority (Judge Ginsburg, joined by Judge Griffith) held that the preliminary injunction was improperly granted because (a) the Dickey-Wicker Amendment is ambiguous, and thus the Administration’s interpretation of its reach is entitled to Chevron deference, and (b) the potential harms of a preliminary injunction were greater to embryonic stem cell researchers (whose funding would be cut off mid-stream) than to the plaintiffs (who would have to compete for grants in a larger pool of applicants). Although I believe the majority reached the right outcome for the wrong reason (there is no need for Chevron deference because the Administration’s interpretation of the Dickey-Wicker Amendment is the only reasonable interpretation), the reasoning suggests that the majority would reach exactly the same conclusion on the underlying merits of the case as it did on the narrower issue before it of the appropriateness of a prelimary injunction.

A unanimous ruling by the D.C. Circuit panel would have sent a clear signal to Judge Lamberth that, were he to rule for the plaintiffs on the merits, he would be reversed. This quite likely would have ended the litigation. But Judge Henderson’s strongly worded dissent, which vigorously adopts Judge Lamberth’s interpretation of the Dickey-Wicker Amendment, sends the signal that there is enough plausibility to Lamberth’s interpretation that a newly-selected three judge panel hearing an appeal of the merits ruling just might affirm. And even if the panel were to again reverse Lamberth, the full court might choose to review the merits decision en banc. (In contrast, it seems unlikely that the Circuit will grant en banc review of the reversal of the preliminary injunction). The strong dissent also suggests that, should the Circuit ultimately reverse Lamberth on the merits, the Supreme Court might agree to hear the case.

The bottom line is that, while last week’s decision preserved the status quo of permitting federal funding for now, it probably did not resolve anything. The strong odds now are that Judge Lamberth will grant the plaintiffs summary judgment in the lawsuit, reiterating his interpretation of Dickey-Wicker Amendment, that the D.C. Circuit will stay the ruling pending appeal, and that all the parties will wait while the D.C. Circuit considers essentially the same issue again.

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