In a long-awaited decision, the U.S. Court of Appeals has ruled 2-1 in favor of allowing the National Institutes of Health to continue to fund human embryonic stem cell research. The decision invalidates the preliminary injunction, issued back in August 2010 in the case of Sherley v. Sebelius, which barred the use of federal funds for any “research in which a human embryo or embryos are destroyed.” After the injunction was enacted, the Department of Justice appealed, and the Appeals court stayed the ruling in September, allowing the NIH to continue funding hES work while the court contemplated the case.
The majority in the case ruled that the plaintiffs were unable to demonstrate that “they are more likely than not to succeed on the merits of their case,” a key determinant for granting a preliminary injunction. The main point of contention is the notorious “Dickey-Wicker” amendment, the source of the funding ban, and its definition of the term “research.” The plaintiffs argued that Congress was unambiguous in deriving the language of the amendment and clearly intended to prohibit any and all research done involving material that was obtained through destruction of a human embryo. However, the court instead deferred to the NIH’s interpretation of Dickey-Wicker, pointing out that “the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC [Embryonic Stem Cell] from an embryo, it does not prohibit funding a research project in which an ESC will be used.” In her dissent, Judge Karen Henderson argued that the majority had performed “linguistic jujitsu” in attempting to define the context of “research.”
Unfortunately, the matter is far from settled. The case now returns to the district court, where Judge Royce Lamberth will rule on the case itself. Regardless of his decision, more appeals are expected. ASBMB has previously joined with other organizations to urge Congress to explicitly codify the National Institutes of Health Guidelines on Human Stem Cell Research, in order to prevent legal challenges that would delay this critical line of work.