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Washington Court of Appeals: Federal funding for embryonic stem cell research legal

This is a legal victory for supporters of embryonic stem cell research against the conservatives, but the battle is not over

US President Barack Obama, from his election website
US President Barack Obama, from his election website

The US Court of Appeals upheld the legality of federally funded research using embryonic stem cells. This is the latest in a series of wins by the National Institutes of Health (NIH) in a three-year legal battle against conservative groups seeking to block the use of these cells. As you may remember, one of the first orders that President Obama signed after taking office was an order allowing federal funding for these studies, and canceled an order issued by President Bush that prohibited federal funding for research on cells derived from human embryos.

The journal Science reports Following the ruling, researchers in the field of embryonic stem cells can breathe easy, but the battle is still not over.

"This is a clear victory for us, we are happy about the decision" says Amy Kostok Rick, legal advisor and president of the Coalition for the Advancement of Medical Research, which protects researchers who use embryonic stem cells in their research. But because the three judges on appeal in the Sherley v. Sabilius trial each issued different rulings in favor of the NIA and used them for different reasons, the lawyers who filed the lawsuit against the NIH may try to seek a retrial, legal experts said.

Samuel Casey, a lawyer working for the plaintiffs, wrote in a statement: "We are disappointed by the decision of the Court of Appeals and given the reason in two opinions at the same time, we are evaluating whether and under what circumstances our client will seek to appeal to the US Supreme Court.

The lawsuit was filed in August 2009, about a month after the NIH outlined guidelines detailing steps President Obama had outlined to ease Bush-era restrictions on embryonic stem cells. Conservative groups and others, including two scientists who study adult stem cells, have argued that the guidelines violate the Dickey-Vicker Amendment, a 16-year-old law that prohibits research that destroys a human embryo. Embryonic stem cells are extracted from embryos that are a few days old in a process that destroys those embryos that are still clusters of cells and not an actual embryo.

The two scientists (who, in the absence of the possibility to research embryonic stem cells, the budgets went to adult stem cells) won the first appeal in August 2010 from the Chief Justice Royce Lambert who blocked the funding for embryonic stem cells. The Court of Appeals at first instance confirmed the decision. In April 2011, the Court of Appeals at the final hearing rejected the decision and stated that there is a high probability that the NIH will win the lawsuit. In July 2011, Lambert upheld the NIH's request and dismissed the lawsuit, saying he would follow the appeals court's decision. The plaintiffs appealed to the same court, the District Court of Appeals in Washington, DC.

Now, in his 15-page decision, Chief Justice David Santal commented that the court's previous decision relies on a legal principle known as the Chevron Rule, according to which in the event of a dispute, the court must accept the government agency's determination. According to the Chevron rule, the NIH "reasonably interpreted" the Dickey-Vicker Amendment authority for federal funding of embryonic stem cell research because stem cells and their derivatives are "isolated." He also rejected the plaintiffs' argument that the NIH policy puts embryos at risk because it encourages their destruction. Santel also ruled that the NIH did not err in ignoring the plaintiffs' demand to completely stop funding these studies.

While the other judges agreed with the decision, they did so for different reasons. Conservative Judge Karen Lecraft Henderson wrote that she agrees with the decision only because the court is bound by previous decisions. Henderson argues that the Chevron precedent is irrelevant to the NIH's decision. Justice Janice Rogers Brown agrees with Anderson that the Chevron precedent is irrelevant, but believes that the NIH's interpretation of the Dickinson-Vicker Act will stand because Congress passed the amendment and authorized support for some embryonic stem cell research. According to her, the decision was difficult because any determination would result in going down a slippery slope.

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