Wisconsin Stem Celll Now

Stem Cell Now Blog

April 29th, 2011

Appeals Court Vacates Preliminary Injunction in Sherley v. Sebelius

Stem Cell researchers in Wisconsin and around the nation are breathing a little easier today. This morning, the United States Court of Appeals for the District of Columbia Circuit vacated the preliminary injunction that was previously granted by the District Court in the case of Sherley v. Sebelius. That injunction, ordering the National Institutes of Health to stop funding embryonic stem cell research under guidelines adopted by the Obama Administration, sent shock waves throughout the stem cell research community. Now the preliminary injunction has been vacated. While it is still possible that the United States Supreme Court might consider an appeal, and re-instate the injunction, for the time being the result of today’s

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Court of Appeals ruling is to allow the N.I.H. to use federal dollars to make grants supporting embryonic stem cell research. The underlying litigation will still continue, but the immediate threat of a disruption of the federal funding stream has been averted. In an article to be published in the Marquette Elder’s Advisor, entitled Funding Stem Cell Research: The Convergence of Science, Religion &Politics in the Formation of Public Health Policy, I criticized the lower court decision granting the preliminary injuction:

Judge Lamberth’s ruling can be criticized on several fronts. First of all, his interpretation of the “unambiguous” language of the Dickey-Wicker Amendment is contrary to the interpretation adopted by three separate presidential administrations. This suggests that the contrary interpretation is at least a permissible reading of the statutory language and that therefore the federal courts should defer to the agency interpretation. Second, under Judge Lamberth’s interpretation of the Dickey-Wicker Amendment, even the Bush administration’s 2001 funding guidelines are unlawful. At no time during the Bush administration did Congress express such understanding of the law. Finally, by granting a preliminary injunction, Judge Lamberth necessarily found that the plaintiffs would suffer irreparable harm if the NIH guidelines were not immediately enjoined. However, as discussed above, there is absolutely no evidence that the availability of federal funds for embryonic stem cell research has limited or detracted from the availability of funds for research using adult stem cells or iPS cells. The federal government currently funds far more research using adult stem cells than embryonic stem cells, and to date the primary financial support for embryonic stem cell research has come from state governments.

In its decision vacating Judge Lamberth’s ruling, the Court of Appeals essentially agreed with these arguments. Today’s decision is important, because it creates precedent supporting the legal interpretation relied upon by President Obama and the N.I.H. when authorizing the use of federal funds for embryonic stem cell research. More on the case and the legal issues involved can be found here: http://chronicle.com/article/Embryonic-Stem-Cell-Research/127349/ The Court of Appeals opinion can be found in its entirety here: http://www.cadc.uscourts.gov/internet/opinions.nsf/DF210F382F98EBAC852578810051B18C/$file/10-5287-1305585.pdf A draft of my article, Funding Stem Cell Research: The Convergence of Science, Religion &Politics in the Formation of Public Health Policy, can be downloaded here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747802

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