Lawsuit against stem cell funding dismissed

Washington -- A federal judge who last year ruled in favor of a lawsuit to stop federal funding of human embryonic stem cell research has reversed course and dismissed the same lawsuit.

Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia on July 27 reluctantly dismissed Sherley v. Sebelius, which argued that federal law prohibits the Dept. of Health and Human Services from funding any research that results in the destruction of human embryos.

The lawsuit cites language in the Dickey-Wicker amendment -- a provision added to HHS appropriations bills annually since 1996 -- to argue that HHS cannot fund 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."

For a decade, HHS has provided federal funding through the National Institutes of Health for stem cell research using, for example, embryos donated to fertility clinics that otherwise would be discarded. However, in August 2010, Lamberth ruled that the amendment does not allow such an interpretation and issued a preliminary ban against such funding. The ban sparked confusion in the research community and forced NIH temporarily to freeze funding for about 50 grants.

But Lamberth's injunction was halted in September 2010 and overturned in April 2011 by a three-judge panel of the U.S. Appeals Court for the District of Columbia. The court's 2-1 majority opinion in favor of HHS in April said the Dickey-Wicker amendment is "ambiguous" and does not prohibit all federal funding for research that uses human embryos. The dissenting appeals court judge labeled the majority's logic "linguistic jujitsu."

At issue is if the Dickey-Wicker amendment's definition of "research" includes the act of destroying a human embryo or a more limited scope of activity. Lamberth wrote in his July 27 decision that he is obligated to follow the appeals court's reasoning and grant an HHS request to dismiss the lawsuit. However, he wrote that he is a "grudging" partner with the appeals court.

The plaintiffs have not decided whether to appeal Lamberth's dismissal but are considering all options, said Steve Aden, senior counsel for the Alliance Defense Fund in Washington, part of the plaintiffs' legal team. "In these tough economic times, it makes no sense for the federal government to use taxpayer money for this illegal and unethical purpose."

The lawsuit's plaintiffs include two researchers who use nonembryonic stem cells, the Christian Medical and Dental Assns., an adoption agency and others.

Medical research stakeholders applauded the dismissal. "While we recognize that Judge Lamberth's ruling is likely to be appealed, dedicated scientists will continue to make incredible progress in understanding all forms of stem cells. It is critical that such research continue," said Ann C. Bonham, PhD, chief scientific officer for the Assn. of American Medical Colleges.

Several federal lawmakers, such as Rep. Diana DeGette (D, Colo.), promised to continue advocating for legislation to end ambiguity about what constitutes permissible stem cell research. "The potential and promise of ethical embryonic stem cell research is too important for too many patients across our nation to leave it vulnerable," she said.

On June 24, DeGette introduced the Stem Cell Research Advancement Act of 2011, which would codify into law NIH standards for stem cell research and require the department to update its standards every three years based on a review of existing science.