Earlier today U.S. District Court Judge Royce Lamberth issued a ruling in Sherley v. Sebelius, the lawsuit from two scientists arguing for a ban on federally funded human embryonic stem cell research (H/T Nature News). This was not the first lawsuit seeking to prevent federal funding, but it was the first to advance within the federal courts, mainly due to two scientists serving as plaintiffs in the case.
Judge Lamberth had issued an injunction against embryonic stem cell funding, which prompted an appeal of the injunction to the Court of Appeals. That court overturned the injunction, which shifted focus in the case back to the District Court. Both sides had filed for summary judgment. These motions had to make the case for or against the idea that .
Judge Lamberth ruled in favor of the Defendants’ Motion for Summary Judgment. In his opinion, the Judge agreed with the Court of Appeals that the Plaintiffs do have standing – a key point that leaves open the possibility of future appeals. However, the Court of Appeals opinion that overturned the injunction constrained the District Court. Its conclusion that research is ambiguous in the context of the Dickey-Wicker Amendment can be overturned by a higher court, but not a lower court. The Court of Appeals opinion also removed the question of deference to agency actions (whether the National Institutes of Health/NIH acted in good faith) from District Court consideration by deciding deference was due. As a result, any of Plaintiffs arguments on how Dickey-Wicker should be interpreted fail in the eyes of the District Court.
The other major claim concerns alleged violations of administrative procedure, that NIH acted arbitrarily and capriciously in developing its guidelines and soliciting public comment. However, the Plaintiffs argue that the NIH acted in bad faith by ignoring comments that opposed federal funding for the research. Because the request for public comment was on the guidelines for that research, and NIH was doing this to comply with an Executive Order, addressing the Plaintiffs’ objections would require the NIH to ignore its legal obligations.
And therein lies the possibility of appeal. That would, however, require that the Court of Appeals be persuaded that its reasoning behind overturning the injunction must somehow not apply when considering the case. It suggests that if appeals are pursued with vigor, then the Supreme Court may be asked to hear the case. I can only speculate whether or not the Supreme Court would agree. Even if it did, any possible ban on the research would not likely happen until the appeals were resolved. We are already two years into the case, suggesting there would likely be at least two more years before a final resolution would be reached on any appeal.