Appeals Court Hears NIH Stem Cell Lawsuit – Again

On Monday there were oral arguments at the Circuit Court of Appeals for the District of Columbia Circuit in the matter of the lawsuit against the National Institutes of Health (NIH) over its stem cell research (Sherley v. Seblius).  The suit was filed in late 2010, and the remaining plaintiffs are researchers in adult stem cells.  The Circuit Court is no stranger to the case, having ruled to throw out an injunction that would have blocked NIH funding while the case was working through the courts.

This phase of the case is an appeal of a District Court decision from July 2011 that ruled in favor of NIH.  The three-judge panel includes one judge that heard the case around the injunction (she dissented in the matter).  In the 35 minute session, it would be hard for me (remember, folks, I am not a lawyer) to discern how the judges might rule.  There were questions about how binding the court’s previous rulings would be (they did speak to the merits of the case when decided whether or not to throw out the injunction).

There were a few issues of the case discussed that were not previously addressed by the Circuit Court.  They included how NIH should have handled the comments submitted against the 2009 stem cell research guidelines, the intentions of Congress behind the Dickey-Wicker Amendment (which is the law that prevents funding of research that harms or destroys research), and a relatively nuanced (at least to this layperson) argument about to what extent NIH funding contributes to the derivation of new stem cell lines.

The current expectation is that a decision could come as early as late summer, though I think the fall is more likely (or I’m just doubling down on my prediction).  An appeal seems likely regardless of the outcome of the decision.  In the meantime, NIH can continue to support human embryonic stem cell research.

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