SCOTUS Won't Review Embryonic Stem Cell Challenge

By Robyn Hagan Cain on January 07, 2013 | Last updated on March 21, 2019

The Supreme Court will not weigh in on the legality of federally funded stem cell research this term.

On Monday, the Court denied certiorari in a challenge to a D.C. Circuit Court of Appeals decision upholding the practice, SCOTUSblog reports.

The controversy at the center of the case stemmed from President Barack Obama's 2009 Executive Order 13505: Removing Barriers to Responsible Scientific Research Involving Human Stem Cells, which stated 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.

Two researchers, Drs. James Sherley and Theresa Deisher, sued to block the Guidelines, claiming that the research violated the 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 D.C. Circuit ruled in August 2012 that the government could continue funding embryonic stem cell research through NIH, despite the researchers' claims.

In 2011, 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 court once again pointed to the ambiguity last year, 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 observed in the unanimous opinion, "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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