Today’s evidence that the courts run on different rules and norms than scientific communities comes from the preliminary injunction issued yesterday. The injunction stops funding of embryonic stem cell research by the National Institutes of Health (NIH). While I did work as a legal assistant, I am not a lawyer (IANAL). Please read the following with that in mind.
The case was initially filed by several plaintiffs, including a couple that was seeking to adopt embryos, and several groups objecting to the NIH policy on the basis of ethical grounds. The primary legal issue in the case is whether or not the policy runs counter to the law that bans the funding the derivation of human embryos for research purposes (the Dickey-Wicker Amendment). The argument from the plaintiffs – one that appears to be persuasive to the judge that issued the injunction – is that any embryonic stem cell research necessarily involves the destruction of human embryos and violates the law.
The case was initially dismissed for standing – that none of the plaintiffs had an immediate stake in the matter and could not sue for relief. However, the Court of Appeals reversed the decision on appeal, ruling that two adult stem cell researchers had standing as competitors. In other words, because the two researchers in a related field might see more competition for funding if embryonic stem cell research would receive federal funding, they could sue to stop the policy.
While there’s an interesting hypothetical raised by this action – would the Bush Administration guidelines have held up under the same kind of scrutiny by the same judge – the standing of the two plaintiffs raises a serious question. Is it OK for researchers to sue the government if its supports competing fields or adjust its policies in such a way that would give the plaintiffs a competitive disadvantage?
While probably (remember, IANAL) legally permissible, practically speaking it seems like a fruitless effort. Besides violating community norms amongst researchers, funders will not likely look well on grant applications from those who have sued to prevent research.
The NIH has not issued a statement, deferring to the Department of Justice, as appropriate. While any future case would need to address how the NIH guidelines do not conflict with the Dickey-Wicker Amendment, it would seem a good idea to address the standing issue. This could be done by addressing the issue of funding for adult stem cells versus embryonic stem cell research, or by arguing that the fields are sufficiently distinct that plaintiffs are not competing against embryonic stem cell researchers, but other adult stem cell researchers. I’m sure there are other arguments to pursue here.
While I’m pretty confident that most scientific researchers would be inclined to compete via grants and papers, I can’t be sure that other researchers wouldn’t try to protect their turf by suing for relief in a way similar to what we see in this case. For instance, it’s not crazy to think that for-profit drug companies might sue to stop policies that would support research on low-cost alternatives on the grounds that it hurts their bottom line. The precedent set by the standing issue could have more consequences than the debate over the NIH guidelines.