A three-judge panel of the District of Columbia Circuit Court of Appeals upheld unanimously Friday (Aug. 24) a federal judge's dismissal of a legal challenge to President Obama's 2009 executive order that overturned a more restrictive funding policy under President George W. Bush. As a result of the latest decision, federal guidelines continue to allow funding for research on stem cells derived from embryos created by in vitro fertilization.
Many scientists and biotech firms have promoted embryonic stem cell research (ESCR) -- and federal funds for the experimentation -- even though the extraction of such cells from an embryo results in the destruction of the days-old human being. While advocates say the embryonic cells hold great promise for developing cures for various diseases, the results have been disappointing. ESCR has yet to provide any treatments for human beings and has been plagued by tumors in lab animals.
Meanwhile, research with adult stem cells and induced pluripotent stem (iPS) cells has garnered more headlines. Adult stem cells have produced therapies for more than 70 afflictions, while iPS cells have demonstrated promising results.
As a result, ESCR has fallen out of favor with a growing number of scientists and biotech companies.
Critics of the Obama policy expressed disappointment that the appeals court did not see it as a violation of the 1996 Dickey-Wicker Amendment, an annual spending bill rider which bars federal funds for "research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death."
"There would be no embryonic stem cells available for federal funding without first harming and destroying a young human embryo, an act that is prohibited by ," said David Prentice, the Family Research Council's senior fellow for life sciences. "A plain reading of Dickey-Wicker would eliminate all taxpayer funds for embryonic stem cell research. Federal funding of embryonic stem cell research is a tragic waste of lives as well as taxpayer money, since despite the promises made to gain the federal funding, there is not a single example of a successful treatment."
Steven Aden, senior counsel for the Alliance Defending Freedom, said, "Americans should not be forced to pay for experiments that destroy human life, have produced no real-world treatments, and violate federal law. That law's clear intent has been utterly ignored. Congress designed that law so that Americans don't pay any more precious taxpayer dollars for needless research made irrelevant by adult stem cell and other research. In the current economic climate, it makes even less sense for the Obama administration to use taxpayer money for this illegal and unethical purpose."
The D.C. Appeals Court judges agreed with a 2011 decision by a three-judge panel of the same circuit, saying "research" as used in Dickey-Wicker is ambiguous. They abided by the previous panel's ruling deferring to NIH's interpretation that "research" might be understood to exclude "the initial derivation" of embryonic stem cells.
"Under that interpretation, Dickey-Wicker permits federal funding of research projects that utilize already-derived ESCs -- which are not themselves embryos -- because no 'human embryo or embryos are destroyed' in such projects," the panel wrote Aug. 24.
In July 2010, Royce Lamberth, chief judge of the D.C. District Court, ruled the NIH guidelines violated Dickey-Wicker. He suspended federal funding for ESCR. In September, however, a D.C. Circuit Court panel lifted Lamberth's suspension while the case went forward. In a 2-1 decision in April 2011, the panel returned the case to Lamberth but virtually killed the challenge.
In July 2011, Lamberth said the appeals court's April decision "constrains this Court," forcing him to dismiss the lawsuit.
Lamberth rejected in his 2010 opinion arguments by the Obama administration that Dickey-Wicker is ambiguous and permits federal funding for research on stem cells after they have been removed from embryos. The appeals court, however, agreed in its April 2011 opinion that Dickey-Wicker is ambiguous, saying although the law "bars funding for the destructive act of deriving an from an embryo, it does not prohibit funding a research project in which an will be used."
The appeals court's determination that the word "research" in the law "is ambiguous binds" him, Lambert wrote three months later.
All three judges in the latest appeals court ruling are Republican nominees. President Reagan nominated David Sentelle, who wrote the opinion. President George H.W. Bush selected Karen Henderson, and President George W. Bush nominated Janice Rogers Brown.
Henderson voted against the majority in the April 2011 ruling but said in a concurring opinion Aug. 24 the earlier decision is binding in this case.
The case is Sherley v. Sebelius.
Obama's 2009 executive order overturned a prohibition instituted by Bush on federal funding of stem cell research that results in the destruction of embryos. Bush's 2001 order permitted grants for experiments on stem cell lines, or colonies, already in existence at the time of his action.
The Dickey-Wicker Amendment, a part of the Department of Health and Human Services' yearly spending bill, is named after its lead sponsors, former Republican Reps. Jay Dickey of Arkansas and Roger Wicker of Mississippi. Wicker is now a member of the Senate.
Compiled by Tom Strode, Washington bureau chief of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
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