Stem cell research: Court gives Obama a victory, but policy still on trial

The White House hails the ruling by a divided appeals court to permit federal funding for embryonic stem cell research. At issue still is whether Obama's policy violates a 1996 congressional ban.

A divided federal appeals court handed the Obama administration a significant victory on Friday when it reversed a judge’s ruling that sought to block government funding of human embryonic stem cell research.

The action by the appeals court lifts a cloud that has hovered over a segment of the medical research community since August when a federal judge in Washington ruled that President Obama’s expansion of stem cell research had violated a congressional ban on using taxpayer money for research in which a human embryo is destroyed.

“Today’s ruling is a victory for our scientists and patients around the world who stand to benefit from the groundbreaking medical research they’re pursuing,” said White House spokesman Nick Papas.

Human embryonic stem cell research is a sensitive subject that has divided US public opinion. Supporters say it may yield major medical breakthroughs, while opponents view it as a version of abortion and a slippery slope to human cloning.

At issue before the appeals court was whether US District Judge Royce Lamberth was correct in August when he ordered the government to stop funding embryonic stem cell research projects. His ruling had been stayed pending appeal, allowing research projects to continue.

On Friday, the appeals court voted 2 to 1 to vacate his preliminary injunction.

'Victory for patients'

“We are thrilled,” said Lisa Hughes, president of the Coalition for the Advancement of Medical Research in Washington, D.C., a bipartisan organization that supports stem cell research.

“This is a victory for patients all across America,” she said in a statement. “This is also great news for the scientific community, so that they may continue to apply for grants and know their research will be able to move forward.”

“The opinion is significant because the contrary result – an order freezing use of federal funds on research on existing stem cell lines – could have jeopardized much of the incredibly important research underway,” said Abbe Gluck, a professor at Columbia Law School.

At issue was whether the Obama administration and the National Institutes of Health were complying with the 1996 congressional ban.

Each administration dating to President Clinton has grappled with the ethical, legal, and public policy challenges of human embryonic stem cell research, as has Congress.

At the center of the debate over government funding of embryonic stem cell science is the issue of the potential destruction of human embryos. The process of developing new cells for research can lead to the destruction of the embryo. Advocates of the research, however, say the stem cells are harvested from embryos that are created through in vitro fertilization and are slated for destruction after not being implanted. Researchers say embryonic stem cells can also be harvested from placental cord blood.

There are no legal restrictions banning the destruction of embryos in privately-funded stem cell research. But researchers complain that there are few sources of private funding.

Bush allowed limited research

Each president has approached the issue differently.

President Bush embraced a restrictive policy, permitting federal funding only for research that used 21 existing lines of cells that had been developed from embryos that had earlier been destroyed. Bush effectively drew a line, saying federal funds would not support any research that would make use of new lines of cells from embryos destroyed after his 2001 order.

In March 2009, President Obama fulfilled a campaign promise when he announced that his administration would no longer enforce the Bush restriction. Obama issued an executive order permitting – for the first time – government funding for research involving new lines of cells developed from embryos destroyed since 2001.

The move greatly expanded research opportunities. But the question was whether it complied with Congress’s 1996 ban on the use of federal funds for research in which a human embryo is destroyed.

Judge Lamberth concluded that the administration was violating the ban and ordered the funding to stop. The appeals court disagreed, and vacated his ruling.

The majority judges said Congress’s 1996 stem cell research mandate was ambiguous and did not decisively support either side in the litigation.

“That fact is the statute is not worded precisely enough to resolve the present definitional contest conclusively for one side or the other,” wrote Judge Douglas Ginsburg in an opinion joined by Judge Thomas Griffith.

'Linguistic jujitsu'

The court added that Congress had continued to reauthorize its ban each year with full knowledge that embryonic stem cell research has been receiving federal funding for the past decade.

In a dissent, Judge Karen Henderson accused the majority of committing “linguistic jujitsu” to parse the 1996 statute in way that rendered it ambiguous.

“The majority opinion has taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat,” she wrote.

Judge Henderson said the intent of the 1996 Congress was to prohibit all research that either results in or relies upon the destruction of a human embryo.

The majority judges disagreed. They said it was possible that Congress intended only to bar federal funding for specific research projects that will cause the future destruction of a human embryo, but not bar funding for research using existing cell lines derived from outside sources.

The 1996 statute, known as the Dickey-Wicker Amendment, prohibits the NIH from funding: “(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero.”

Full trial in federal court

Although the injunction is lifted, the underlying challenge to existing stem cell policies will now move forward toward a full trial in federal court.

A key issue in the case is how broadly to define the word “research” in the statute. The Obama administration and the NIH embrace a narrow reading of the term, suggesting it means a particular research project rather than a general field of inquiry.

The two researchers who filed the lawsuit challenging the president’s expanded stem cell research policy argue that “research” includes not only work related to the resulting stem cell lines, but also the initial creation of those lines, which would have resulted in the destruction of a human embryo.