October 15, 2012

Petition Filed for Supreme Court Review of Federal Funding for Embryonic Stem Cell Research

A petition for certiorari has been filed in Sherley v. Sebelius, the ongoing challenge to the NIH Guidelines for the federal funding of embryonic stem cell research funding (previous coverage). The recent decision from the Court of Appeals for the D.C. Circuit rejected the claim of the plaintiffs that the funding violates the Dickey-Wicker amendment, which prohibits the use of federal funds for any research in which an embryo is harmed or destroyed. That provision was interpreted by the court to not cover the process for deriving embryonic stem cells from embryos, thus not placing the NIH stem cell policy in violation of the funding ban. The challenging researchers continue to claim that such an interpretation is erroneous. In the D.C. Circuit decision, the concurring opinions acknowledged the murky legal climate for federal funding of embryonic stem cell research, noting the automatic attachment of the Dickey-Wicker amendment to HHS funding bills without much new deliberation since 1996. Judge Brown wrote: "Given the weighty interests at stake in this encounter between science and ethics, relying on an increasingly Delphic, decade-old single paragraph rider on an appropriations bill hardly seems adequate." The petition advances several procedural arguments against the D.C. Circuit’s decision; one alleges a violation of the Administrative Procedure Act (alleging the 2009 Obama Executive Order unlawfully relieved NIH from completion of its formal rule-making obligations) and a misinterpretation of the law of the case doctrine (does it include decisions made at the preliminary injunction stage?). The petitioners cite a conflict among the circuits over the law of the case doctrine, trying to entice the Court into a review. Before we hear from the Court on this petition, the upcoming election will intervene – and the contrasting positions of Obama and Romney will either uphold or dismantle the current NIH policy. There has been very little federal litigation on embryonic stem cell research, but we now have more than a decade’s worth of political instability over the issue, with another indirect political referendum on November 6th. It should be noted that the recent attempts at personhood legislation (also at the federal level) are contemporary initiatives to ban embryonic stem cell research, as they would codify the legal status of the embryo as a fully constitutionally-protected individual; that would likely outlaw embryonic stem cell research. A Romney victory could be expected to reverse the NIH policy and render this litigation moot; an Obama victory would not.

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