Appeals court overturns stem cell research funding ban

Research supporters hail the decision, but a dissenting judge says the majority ignored the intent of a longstanding federal amendment.

By Doug Trapp — Posted April 29, 2011

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A federal appeals court on April 29 overturned a lower court's ruling banning federal funding of any research that leads to the destruction of human embryos.

The three-judge panel of the U.S. Appeals Court for the District of Columbia ruled 2-1 in favor of the Dept. of Health and Human Services, which had argued on behalf of the National Institutes of Health. The lawsuit, aimed at blocking federal funding of human embryonic stem cell research, was brought against the Obama administration by two researchers who use nonembryonic stem cells, the Christian Medical & Dental Assn., an adoption agency, and others.

"This is a momentous day -- not only for science, but for the hopes of thousands of patients and their families who are relying on NIH-funded scientists to pursue life-saving discoveries and therapies that could come from stem cell research," said NIH Director Francis Collins, MD, PhD.

At issue was the intent of the Dickey-Wicker amendment, which Congress has added to annual HHS appropriations bills each year since 1996. That amendment bars HHS from using federal funds for the creation of human embryos for research purposes, or 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 plaintiffs argued that the Dickey-Wicker amendment was written to prevent federal funding of any research that leads to the destruction of human embryos. However, that is contrary to HHS' longstanding interpretation of the amendment. NIH for a decade provided federal funding for stem cell research on, for example, embryos donated to fertility clinics that otherwise would be discarded.

In late August, Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia agreed with the plaintiffs and issued an injunction against federal funding of all such stem cell research.

But in the latest decision, the appeals court tossed out Lamberth's ruling and concluded that the HHS interpretation of the Dickey-Wicker amendment is the correct one. The majority said the amendment is "ambiguous" and does not prohibit all federal funding for research that uses human embryos.

Judge Karen LeCraft Henderson said in a dissenting opinion that the majority used "linguistic jujitsu" to conclude that the amendment's ban on "research" does not include all possible types of human embryonic stem cell research.

An attorney representing the plaintiffs did not immediately return a phone call seeking comment on the decision.

The appeals court heard arguments in the case on Dec. 6, 2010.

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