April 27, 2012

Adult Stem Cell Researchers Ask Federal Appeals Court to Reverse Ruling that Federal Law Does Not Ban Federal Funding of Illegal, Unnecessary, and Unethical 'Research in Which' Human Embryos are 'Knowingly Subjected to Risk of Injury or Death'

The U.S. Court of Appeals for the District of Columbia asked to reverse federal district's ruling dismissing action to enjoin federal funding of human embryonic stem cell research.


On behalf of the adult stem researchers it represents, the Jubilee Campaign's Law of Life Project and their co-counsel at the Alliance Defense Fund and Gibson, Dunn & Crutcher, having filed their opening Appellants' Brief and Appellants' Reply Brief, will appear for oral argument asking a panel of the United States Court of Appeals, composed of Chief Judge David Sentelle, Judge Karen Henderson and Judge Janice Rogers Brown to "reverse the district court's judgment in favor of Defendants, reverse the grant of Defendants' Motion for Summary Judgment and the denial of [Appellants'] Motion for Summary Judgment, and remand with directions to enter summary judgment for [Appellants]." Appellants argue that The National Institutes of Health (NIH) Guidelines for funding human embryonic stem-cell research "are invalid because they violate [the federal law known as] the Dickey-Wicker Amendment" and because they were promulgated in violation of the Administrative Procedure Act. Accordingly, Appellants will argue that they--"not Defendants--are entitled to summary judgment."

Appellants are appealing the United States District Court for the District of Columbia's July 27, 2011, decision dismissing their challenge to the Obama administration's unprecedented and unlawful federal funding of destructive human embryo research. Appellants argue that the district court erroneously interpreted and applied the Court of Appeal's April 29, 2011, ruling vacating the district court's August 23, 2010, preliminary injunction of the NIH Guidelines that the Obama Administration promulgated to permit the federal funding of "research in which" human embryos are "knowingly subjected to risk of injury or death." While again affirming the standing of adult stem-cell researchers to challenge these regulations, the federal district court dismissed the case saying that it had no choice under the "mandate rule" but to follow the Court of Appeal's April 29 ruling that Congress' ban on human embryonic research was written in a sufficiently "ambiguous" fashion to ban the use of federal funds that risked the "injury or death" of human embryos, but not the use of federal funds to do research on the embryonic stem cells that were derived from such injury or destruction. In the words of U.S. District Court Judge Royce Lamberth explaining his July 27 decision: "While it may be true that by following the Court of Appeals' conclusion as to the ambiguity of 'research', the Court has become a grudging partner in a bout of 'linguistic jujitsu', Sherley, 2011 WL 1599685, at 22 (quoting Henderson, J. dissenting), such is life for an antepenultimate court."

The case began almost two years ago when, in response to President Obama's March 9, 2009 Executive Order, the NIH published and noticed for public comment regulatory guidelines allowing federal funds to be used for the first time for the creation of new stem cell lines (hESC) requiring the destruction of living human embryos. Before these guidelines became law, the Law of Life Project's General Counsel, Sam Casey, with his co-counsel Tom Hungar of Gibson, Dunn and Crutcher, representing the DO NO HARM Coalition, formally filed over 140 pages of legal and scientific comments objecting to what many people saw as the grossly irresponsible use of public funds to support research which is illegal, unnecessary, and an unethical breach of long-standing Congressionally-acknowledged principles barring such human subject experimentation. When NIH patently ignored and prejudged these comments and approximately 30,000 other comments opposing federal funding of destructive human embryonic stem cell research, the ongoing legal action was required.

LOLP's General Counsel, Sam Casey, who has been arguing the issues in this case for more than a decade, said: "Each time grant-awarding officials and federally funded scientists support or engage in hESC research, living human embryos are 'knowingly subjected to risk of injury or death,' in violation of the federal law known as the Dickey-Wicker Amendment. The federally sponsored hESC research that the Guidelines support inevitably creates a substantial risk—indeed, a virtual certainty proven by the evidence in this case--that more human embryos will be destroyed in order to derive more hESCs for misdirected research purposes at the unwilling taxpayers' expense. Congress first enacted the Dickey-Wicker Amendment to avoid this exact result, as an instructive "friend of the court" brief filed by 16 bioethics scholars in support of this appeal so clearly demonstrates."

"The NIH chose to ignore both our DO NO HARM et. al. Comments, as well as approximately 30,000 other comments--60% of those received in the mandatory guideline review process—which raised serious and highly relevant questions about the ethics and scientific merits of human embryonic stem cell research," said Gibson, Dunn and Crutcher partner, Tom Hungar, Mr. Casey's co-counsel. Hungar added, "the challenged NIH Guidelines clearly violate the Dickey-Wicker Amendment, but NIH's decision to turn a blind eye to tens of thousands of comments demonstrating that human embryonic stem cell research can't be justified even under the government's own criteria means that the NIH's guidelines were promulgated in violation of the Administrative Procedure Act and must be struck down for that reason as well."

After the NIH took any real consideration of the merits of hESC research "off the table" during its pre-ordained review process, effectively pushing a very specific and controversial policy despite laws designed to prevent exactly that action, the Law of Life Project and its co-counsel were left with no recourse but direct litigation, and the hope that the judicial system will ultimately rectify the injustice the NIH continues to unlawfully perpetrate at the taxpayers' expense. Since that time, after going to the Court of Appeals the first time in 2009 to establish their clients' "standing" to assert their claims, and a second time in 2010 unsuccessfully defending a preliminary injunction entered by the District Court on the strength of only the first of their three claims for relief, Casey says, "the Law of Life Project now must return to the Court of Appeals to respectfully ask it to give full consideration to all of plaintiffs' arguments, including those that it has not previously addressed. Given the legislative intent and legal history involved in this case and the enormous destruction of human embryonic life costing hundreds of millions of dollars Congress never intended to permit in passing the Dickey-Wicker amendment banning such expenditures, we have no choice but to now exhaust all of our judicial remedies before returning to the Congress, if necessary."

Contact: Samuel B. Casey
Source: Law of Life Project