By David Prentice
U.S. District Judge Royce Lamberth has dismissed a federal lawsuit challenging current NIH guidelines that allow taxpayer funding of human embryonic stem cell research. Judge Lamberth had originally ruled in favor of the plaintiffs, Dr. James Sherley and Dr. Theresa Deisher, in a preliminary injunction in August 2010. He concurred with the plaintiffs that the guidelines violated the Dickey-Wicker Amendment’s prohibition on federal funding for “research in which a human embryo or embryos are destroyed.”
That preliminary injunction temporarily shut down federal funding, until an Appeals Court placed a temporary hold on the injunction in September 2010. In April 2010 the U.S. Court of Appeals for the District of Columbia Circuit vacated the preliminary injunction in a 2-1 split decision.
The split court held (as Judge Lamberth wrote today] that Dickey-Wicker is “ambiguous,” and “although Dickey-Wicker bars funding for the destructive act of deriving an [embryonic stem cell] from an embryo, it does not prohibit funding a research project in which an [embryonic stem cell] will be used.” Supplemental briefings were filed in the case in June 2010.
In today’s opinion by Judge Lamberth, he noted that the April split decision by the Appeals Court tied his hands in terms of ruling on the main lawsuit
“At the outset, the Court notes that the D.C. Circuit’s opinion, vacating the award to plaintiffs of a preliminary injunction, constrains this Court on remand.”
“While it may be true that by following the Court of Appeals’ conclusion as to the ambiguity of “research,” this Court has become a grudging partner in a bout of “linguistic jujitsu,” Sherley, 2011 WL 1599685, at *10 (Henderson, J., dissenting), such is life for an antepenultimate court.”
The linguistic parsing is related to the interpretation of the Dickey-Wicker amendment, a limitation placed by Congress onto funding bills since 1996, which says in part that no federal taxpayer funds can be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death. . .” The specific meaning of “research in which” has been the focal point of the arguments.
While the decision is disappointing, it is hardly the end of the question or debate.
Dr. Prentice is Senior Fellow for Life Sciences at the Family Research Council.