The biomedical research community is excited by the decision of the Federal Court today to throw a trial that threatened to close research funded by the federal government on human embryonic stem cells (hESCs). United States District Court for the District of Columbia Chief Judge Royce Lamberth, who earlier ruled against the National Institutes of Health, this time came down on the side of the NIH in several key arguments in the case.
The plaintiffs expect to appeal, and could end up before the Supreme Court of the United States. But their chances seem slim because the 38-page opinion strongly favors NIH, say some who read it. "It was a great decision to slam dunk even if Lamberth clearly somewhat reluctantly," said Anthony Mazzaschi of the Association of American Medical Colleges in Washington, DC "They can keep uncertainty alive for another 2 to 3 years but [their suit] is on life support, "said Stanford University law professor Hank Greely.
Harvard Medical School researcher George Daley stem cells is safer." I hope we're done for now, but nothing surprises me anymore, "said Daley.
the suit, Sherley v. Sebelius , was filed in 09 by groups that included two scientists who study adult stem cells. They argued that the execution of the July NIH guidelines of an order from President Barack Obama to lift the limits on hESC research violated the Dickey Amendment , a law that prohibits federal funding for "research in which a human embryo or embryos are destroyed."
In a ruling, Lamberth concluded that the plaintiffs were likely to win. It issued a preliminary injunction in August 2010 that stopped briefly NIH funding for hESC research before an appeals court suspended the injunction. But that court, the Court of the United States call for the DC Circuit, in a 2-1 decision in April overturned the preliminary injunction, allowing research to continue until Lamberth ruled on the background of the underlying case.
And this time, Lamberth sided with the NIH. Much of its decision based on deference to the conclusion of the Court of Appeal that NIH can interpret Dickey-Wicker to allow funding for hESC research but not on their derivation because the definition of "research" the law is ambiguous. "In the absence of a compelling reason to depart from this operation, the Court has to take at this stage of the proceedings," said the notice.
However, Lamberth did not seem happy about it. Citing the dissenting appeals court judge, he wrote: "While it is true that by following the Court of Appeal's conclusion as to the ambiguity of" research ", this Court become a reluctant partner in a bout of 'linguistic jujitsu, "... such is the life of a penultimate court."
Lamberth did not buy the argument of the plaintiffs that the hESC research puts embryos at risk by creating demand for hESCs. by that reasoning, even research involving a propane tank that took place in a laboratory adjacent to a place where the embryos were stored would be contrary to law, the notice said .
Finally, Lamberth threw on the complainants' request that NIH had improperly ignored tens of thousands of comments from opponents looking hESC when he developed the guidelines. President Obama had directed NIH to loosen search limits in hESC imposed by President George W. Bush. To prohibit research on hESCs instead of changing the rules "have violated the law," Lamberth wrote.
Steven Aden of the Alliance Defense Fund in Washington, DC, one of the plaintiffs' lawyers, said in a statement they "weigh all their call options." The plaintiffs would appeal first to return to the court of appeal, where the same three-member panel would likely hear the case, says Greely. If they lose again, which seems likely, applicants can appeal to the Supreme Court. "I think they will lose [in the Supreme Court], but it is probably worth it for them to give it a shot," said Greely.
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