Almost two years ago to the day, Chief Judge Royce Lamberth of the D.C. District Court shocked the human embryonic stem cell (hESC) research community by preliminarily enjoining NIH funding of that research, on the grounds that plaintiffs were likely to succeed on the merits of their argument that hESC research violates the so-called Dickey-Wicker Amendment (on which more below). Today, the D.C. Circuit affirmed Chief Judge Lamberth’s (reluctant) grant of summary judgment for the government, a holding that he had been essentially forced into by an earlier panel of the D.C. Circuit. (My co-guest blogger covers the other big decision coming out of the D.C. Circuit today, below.) Since it is extremely unlikely that the D.C. Circuit will review the decision en banc or that the U.S. Supreme Court will accept cert., today’s decision effectively ends litigation that caused utter chaos to erupt in labs all over the country in the wake of the preliminary injunction, and continued to cause significant uncertainty even after the D.C. Circuit quickly stayed that preliminary injunction. Congress could, of course, act to clarify the ambiguity in Dickey-Wicker. But this seems highly unlikely given the current partisan split between the House and the Senate. Indeed, the draft HHS appropriation bill that passed the subcommittee, on which I blogged previously, contains Dickey-Wicker’s familiar language, to the letter. The ambiguity regarding the legality of federal funding of hESC research seems, then, to have reached its low water mark during the past couple of years, and should stay that way…at least until November.
For those of you who are close observers of this litigation: as you were (or skip to the section on today's opinions, below). For the uninitiated-but-interested: Some background. Federal policy regarding funding for hESC research has, since the beginning of this research in 1998, been extremely contentious, wrapped up as it is with ethical, political and diverse religious positions on the moral status of human embryos and other aspects of “abortion politics.” An embryonic stem cell line is so called because the line is derived from an embryo (really, a five-day or so blastocyst), and this process necessarily destroys that embryo. Despite that — or because of it — the funding policies under the Clinton, Bush and Obama administrations have been remarkably similar. In this article, published in September 2009 — one month after the litigation that no one thought would have legs had commenced — political scientist James Fossett and I analyzed these extent to which the Obama Administration’s guidelines for funding hESC research, then just announced by NIH, were likely to achieve two of their stated goals: (1) expanding NIH support for hESC research after what had been widely perceived by the science community as strict limits on it during the Bush Administration, and (2) ameliorating the patchwork of state and private regulatory standards that had come to govern this research in the absence of federal funding.