Judge Lamberth Yields to D.C. Circuit in Stem Cell Case

Judge Royce Lamberth of the U.S. District Court for the District of Columbia issued a final ruling today in Sherley v. Sebelius, upholding federal funding of human embryonic stem cell research eleven months after creating an uproar in the medical research community by issuing a preliminary injunction halting the funding. The decision came three months after the D.C. Circuit reversed his preliminary injunction on the ground that a federal appropriations statute (often known as the Dickey-Wicker Amendment) does not prohibit funding of research using the embryonic stem cells. Lamberth today held that the Circuit Court’s decision required him to resolve the underlying merits of the case in favor of the government and against two scientists who conduct research on adult stem cells and were earlier found by the D.C. Circuit to have “competitor standing” to challenge the Obama Administration’s expansion of the pool of research projects eligible for federal support. Lamberth also denied two arguments made by the plaintiffs that were not directly addressed in by the D.C. Circuit’s April ruling: that the Administration’s new policy of funding embryonic stem cell research violated the Dickey-Wicker Amendment by providing an incentive for scientists to destroy embryos (not using federal funds) in order to create new cell lines, and that the Administration violated the Administrative Procedure Act when promulgating the new funding regulations.

The annually-enacted Dickey-Wicker Amendment to federal appropriations prohibits federal funding of “research in which a human embryo or embryos are …knowing subjected to risk of injury or death.” Last year Lamberth ruled that the word “research” in the Amendment refers not just to the particular project for which a grant recipient seeks federal funding (such as studying whether and how embryonic stem cells can be used to fight disease) but also the earlier steps in the chain of events, which include destroying an embryo to derive the stem cell line. He thus held that any research using embryonic stem cells is necessarily “research” that harms embryos. On a 2-1 vote, the D.C. Circuit held that whether the term “research” refers to the narrower project or the broader set of related events was ambiguous, and thus that the Department of Health and Human Services was entitled to Chevron deference of its narrow interpretation of the term. It was this interpretation that Lamberth held (correctly) required him to enter a final judgment on the merits for the government.

Lamberth’s analysis of the plaintiffs’ secondary claim that the federal funding would encourage the destruction of more embryos was particularly insightful. Lamberth emphasized the words “in which,” explaining that this phrase signifies that the risk of harm to embryos must come from within the research itself in order to run afoul of Dickey-Wicker. Had Congress wished to prohibit funding of all research that might indirectly result in harm to embroys — a result Lamberth said would lead to “far-reaching” consequences and “strange result[s]” — it could have use phrases such as “from which” or “as a result of which” rather than “in which.”

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