September 24, 2011

Appeal Filed in Ongoing Embryonic Stem Cell Funding Litigation

An appeal has been filed in the ongoing challenge to the government's policy of providing funding for embryonic stem cell research (ESCR).  This funding followed the Obama Executive Order in 2009, which ended the Bush-era ESCR funding ban.  Several adult stem cell researchers allege that the federal funding sponsored by the Department of Health and Human Services and the National Institutes of Health (NIH) violates the existing Dickey-Wicker amendment, which prohibits the use of federal funds for any research in which an embryo is destroyed. The NIH Stem Cell Guidelines, published in 2009, reference the amendment, but make it clear that the ESCR research does not violate it:  "These guidelines therefore recognize the distinction, accepted by Congress, between the derivation of stem cells from an embryo that results in the embryo’s destruction, for which federal funding is prohibited, and research involving hESCs that does not involve an embryo nor result in an embryo’s destruction, for which federal funding is permitted."  The plaintiffs had won a preliminary injunction against the research in August 2010. In April, the appellate court lifted the injunction, finding that NIH was likely to prevail against the challenge, effectively upholding the research funding, stating that the term "research" in the amendment was ambiguous. The lower court then ruled against the challenge.  This appeal continues the back and forth litigation on this issue; the D.C. Circuit has certainly signaled its pro-ESCR reading of the Dickey-Wicker amendment, and could be expected to maintain this view in the merits challenge now filed.  Reports are that NIH spent around $200 million on ESCR-related research in 2010.

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