Federal Appeals Court Rules in Favor of ESCR at NIH

A federal appeals court voted to overturn a preliminary injunction that temporarily halted funding for embryonic stem cell research (ESCR) last December.

The case came about when plaintiffs James Sherley and Theresa Deisher filed a claim that the National Institutes of Health violated the Dickey-Wicker Amendment, which bans funding for research that destroys embryos.

The recent 2-1 decision in Sherley et al v. Sebelius strongly favors NIH. Two of the three judges who heard arguments in the case, Justices Douglas Ginsburg and Thomas Griffith, conclude:

The plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used.

The third judge, Justice Karen LeCraft Henderson, offered a dissenting opinion, stating that Ginsburg and Griffith perform “linguistic jujitsu” in their opinion for the court.

Because the decision was not unanimous, the plaintiffs now have the opportunity to file for an en banc hearing by the entire D.C. circuit. They can also choose to file an appeal with the U.S. Supreme Court. In addition, a “summary judgment” by the judge who issued the preliminary injuction, Judge Royce Lamberth, still lies in wait.

It is unclear how long the various hearings and rulings could take to play out. However long they take, it is clear that this case is not yet closed; however, one law expert told ScienceInsider that the plaintiffs’ options are limited and things seem to weigh heavily in favor of NIH.

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