Earlier today the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 to overturn the injunction that would have barred federally funded stem cell research while a lawsuit over such research is tried in court (H/T ScienceInsider). The judge in the lawsuit had issued an injunction, which the government appealed. At the request of the government, the injunction was stayed (not implemented) pending the Court’s ruling today. So there was very little disruption to federal funding, at least where the lawsuit is concerned.
The panel of judges that ruled today were all appointed by Republican presidents. One of them, Judge Griffith, had heard previous arguments about the injunction in September, at a hearing where the court decided whether the stay would be implemented pending the appeal of the stay (yeah, I’m dizzy too). The court’s ruling is based on oral arguments that took place last December (which I completely missed). Should plaintiffs wish to press their case for an injunction, they could ask for the full Circuit Court to review the matter and/or appeal to the Supreme Court. The split ruling from the panel may give plaintiffs sufficient motivation to try.
It should be noted that the lawsuit, which is in Federal District Court, continues. Both sides have moved for summary judgment, but as I noted when posting about those motions last fall, it’s far from certain that such motions will be granted in this case.
As to the specifics of today’s decision, the ruling focused primarily on whether or not the injunction was warranted under relevant legal tests. The first test concerns the likelihood of plaintiffs’ success in the lawsuit, and I’ll cover that in a minute, as it was the bulk of the ruling. More directly at issue with the injunction is the harm the injunction would inflict on both sides. In this area, the majority opinion is the only one that really addresses this matter (which may not help in any further appeals of today’s ruling). In their opinion, the injunction would cause more harm to the government and to the public interest because it effectively upends the status quo in this research field. Their argument at least shows some attempt to address harms to other researchers, and acknowledge that plaintiffs have more options for funding than their allegations of harm would suggest. The dissenting opinion merely reiterated the District Court’s findings that the plaintiffs’ loss of funding would be significant and difficult to remedy, and simply asserts that the public interest would be furthered by the injunction since it would be fulfilling the will of Congress in the Dickey-Wicker Amendment.
At the risk of being glib, if the debate between the three judges over what constitutes research is reflected in District Court, the lawsuit may eventually come down to whether or not the derivation of stem cells is inseparable from research on stem cells (in a legal context). Federal funding for derivation of stem cells is prohibited by the Dickey-Wicker Amendment (typically tucked into appropriations bills, and not likely to be overturned in the near future).
To be clear, it’s not a case that the majority opinion judges felt that the Amendment clearly allows for research on already-derived stem cells, they argue that it is ambiguous (the dissenting opinion argues that the Amendment clearly does not allow for such research). As that does not support a major part of the plaintiffs’ argument (that the stem cell research guidelines are in clear violation of Dickey-Wicker), that would be enough to undercut the notion that plaintiffs would be highly likely to prevail in court (again, a matter of legal opinion).
With the presence of ambiguity surrounding a significant point in the lawsuit, it would not surprise me to see this case work it’s way back to the Court of Appeals once there is a verdict in the lawsuit.
On a side note, my reading of the arguments from plaintiffs suggests that this lawsuit could have been brought during the Bush Administration (Dickey-Wicker has been in effect since the 1990s), as stem cell research policy then allowed for federal funding of research on already derived lines of stem cells. But there are many other issues associated with stem cell research lawsuits, so it might simply be a matter of struggling to find parties with standing to sue over stem cell research (some parties were dismissed from the underlying suit for just such a reason). But proving standing does not prove one’s case.