D.C. Circuit: Feds Can Fund Embryonic Stem Cell Research

By Robyn Hagan Cain on August 28, 2012 | Last updated on March 21, 2019

The D.C. Circuit Court of Appeals ruled on Friday that the government can continue funding embryonic stem cell research through the National Institutes of Health (NIH), despite claims that the work destroys human embryos, reports The Washington Post.

Opponents argued that embryonic stem cell research violates the 1996 Dickey-Wicker law, which prohibits federal funding for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero.”

The controversy at the center of the case started with President Barack Obama's 2009 Executive Order 13505: Removing Barriers to Responsible Scientific Research Involving Human Stem Cells, stating that the Director of the National Institutes of Health (NIH), may support and conduct responsible, scientifically worthy human stem cell research, including human embryonic stem cell research, to the extent permitted by law.

Four months after Obama issued the executive order, the NIH Guidelines for Human Stem Cell Research (Guidelines) became effective.

Two researchers, Drs. James Sherley and Theresa Deisher, sued to block the Guidelines, claiming that the research violated the Dickey-Wicker Amendment.

Last year, the D.C. Circuit Court of Appeals vacated a preliminary injunction in the case, concluding that the plaintiffs were unlikely to prevail because Dickey-Wicker is ambiguous. The appellate court noted at that time that, while Dickey-Wicker bars funding for the destructive act of deriving an embryonic stem cell from an embryo, it does not prohibit funding all embryonic stem-cell research projects. The district court later granted summary judgment in favor of Department of Health and Human Services (HHS) Secretary Kathleen Sebelius. (NIH is part of HHS.)

The court once again turned to that ambiguity last week, finding that NIH had reasonably interpreted Dickey-Wicker's ban on funding "research in which ... embryos are destroyed" to allow federal funding of embryonic stem cell research.

Judge David Sentelle, who wrote the opinion for unanimous panel, noted, "Because [Executive Order 13505's] entire thrust was aimed at expanding support of stem-cell research, it was not arbitrary or capricious for NIH to disregard comments that instead called for termination of all ESC research."

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