Score one for hESC research

A second lawsuit challenging embryonic stem cell research is dismissed by federal appeals court

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RICHMOND, Va.—As the contentious Sherley, et. al., v. Sebelius, et al., case challenging federal funding for human embryonic stem cell research (hESC) awaits further court action, another case making similar arguments, but adding interesting new ones, has been shut down by a federal appeals court.

Like the Sherley case, Mary Scott Doe, et al., v. Barack Hussein Obama, et. al., argues that the new hESC policies put forth by President Barack Obama and the National Institutes of Health (NIH) violate the Dickey-Wicker Amendment, a 1995 restriction on NIH funding which bars the use of federal funds for "research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death."

But the case, a consolidated action which was filed by the National Organization for Embryonic Law, Nightlight Christian Adoptions and eight parents of children adopted as frozen embryos on behalf of "a putative class of all frozen embryos held throughout the United States for either research or adoption purposes," also argued that new hESC policies violate the Thirteenth and Fourteenth Amendments as well as the Administrative Procedure Act.

The district court dismissed both lawsuits for lack of standing, and in late January, the Fourth Circuit Court of Appeals upheld the Obama Administration's attempts to ease past restrictions on hESC research funding.

Acknowledging the "sensitivity of the underlying issue and respect the sincerity of arguments on all sides of the question," the federal appeals court refused to reverse a Maryland federal judge's decision to throw out the claims. Judge Harvie Wilkinson, writing for the three-judge panel, said the plaintiffs could not show that all of the frozen embryos would be harmed by the research.

"As a matter of law, the principles of standing enunciated by the Supreme Court mandate an affirmance of the judgment," the court stated in its ruling.

The plaintiffs filed their suit "on behalf of unborn children who would be destroyed in the research funded by the departments" and sought "to stop the expected $92 million that could be funneled from taxpayer funds to embryonic stem cell research, which has never helped human patients and has yielded significant problems in studies with animals," according to court documents.

Ultimately, the appellate court disagreed, stating: "The complaint does not identify any of the named plaintiff's particularized characteristics. Instead, it leaves us only with questions such as whether the embryo will ever be used for research and whether that research will be funded by the National Institutes of Health. We have no idea under what terms the named plaintiff embryo was donated or stored or what its status even is. In the absence of answers, the chosen appellation of Mary Scott Doe could equally designate any member of an amorphous frozen embryo class."

Knowing this case would inevitably be compared to Sherley, the appeals court was careful to differentiate the two cases. Although the appeals court acknowledged that the court in Sherley concluded that certain scientists who compete directly with hESC researchers for NIH funding have "competitor standing" to bring related claims," the court pointed out that the Sherley plaintiffs were doctors that "specialize in adult stem cell research," and in order to compete with embryonic stem cell researchers for NIH funding, they would "have to invest more time and resources to craft a successful grant application."

"That injury—an increased risk that a government agency would choose not to fund the doctors' research—is not alleged here," the appeals court stated. "We express no opinion on the standing issue in Sherley or any other case not presently before this court, but simply note that such cases are different from the one that is before us. In the absence of a showing that the Supreme Court's requirements for standing have been met in this particular case, the complaint presents what is essentially a policy dispute over the administration's approach to stem cell research. We do not doubt for a moment the sincerity of those who oppose, as well as those who support, the revised NIH funding guidelines. But depth of conviction, while admirable, cannot serve to displace the courts' own deep attachment to the law."

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