Judge puts Obama stem cell policy on hold

Injunction suggests executive order violates law

**FILE** In this Oct. 22, 2008 photo, Theresa Gratsch, a Ph.D. research specialist, views nerve cells derived from human embryonic stem cells under a microscope at the University of Michigan Center for Human Embryonic Stem Cell Research Laboratory in Ann Arbor, Mich. (Associated Press)**FILE** In this Oct. 22, 2008 photo, Theresa Gratsch, a Ph.D. research specialist, views nerve cells derived from human embryonic stem cells under a microscope at the University of Michigan Center for Human Embryonic Stem Cell Research Laboratory in Ann Arbor, Mich. (Associated Press)
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A federal judge issued a temporary hold Monday on the Obama administration’s new guidelines on human embryonic stem cell research, dealing the White House a serious setback in its efforts to promote the highly sensitive research with federal funding.

U.S. District Court Judge Royce Lamberth granted a preliminary injunction to a coalition of researchers and Christian groups and gave them hope for a successful trial outcome by indicating that President Obama’s executive order likely violates federal law.

In his March 2009 signing order, Mr. Obama lifted the Bush administration’s restrictions on federal funding for embryonic stem cell research. The National Institutes of Health published its final guidelines on the research in July 2009.

The problem, according to the 15-page opinion, is that the guidelines appear to violate an annually passed appropriations rule that prohibits the use of federal funds for research in which a human embryo is deliberately destroyed.

“[P]laintiffs have demonstrated a strong likelihood of success that the Guidelines violate the Dickey-Wicker Amendment,” Judge Lamberth wrote in the opinion.

Congress has spoken to the precise question at issue — whether federal funds may be used for research in which an embryo is destroyed,” he said. “Thus, as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on ‘research in which a human embryo or embryos are destroyed.’”

Once the question of the law is decided, Judge Lamberth added in a passage that heartened pro-lifers, the fact question “is whether [embryonic stem cell] research is research in which a human embryo is destroyed. The court concludes that it is.”

Steven H. Aden, a counsel with the Alliance Defense Fund, one of the conservative groups that provided legal help in the case, said, “The American people should not be forced to pay for experiments — prohibited by federal law — that destroy human life. The court is simply enforcing an existing law passed by Congress that prevents Americans from paying another penny for needless research on human embryos.”

Attorneys for the Justice Department had argued that the destruction of an embryo and research on the destroyed embryo should be viewed as separate legal acts.

The NIH guidelines “recognize the distinction … between the derivation of stem cells from an embryo that results in the embryo’s destruction, for which federal funding is prohibited, and research involving [stem cells] that does not involve an embryo nor result in an embryo’s destruction, for which federal funding is permitted,” according to the defense brief.

But the judge rejected the argument.

“If one step or ‘piece of research’ of an [embryonic stem cell] research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment,” wrote Judge Lamberth, a 1987 appointee of President Reagan.

Foes of embryonic stem cell research applauded the ruling.

“The court said, ‘Hey, listen, all of this is part of the research. You can’t do the research without killing embryos,’” said Dr. David Stevens, chief executive officer of the Christian Medical and Dental Association, one of the organizations that filed the lawsuit.

However, Sean Tipton, public affairs director for the American Society for Reproductive Medicine, called the decision “incredibly disruptive.”

“This injunction blocks important research on how to unlock the enormous potential of human embryonic stem cells,” he said.

The decision leaves the Obama administration with a choice: whether to continue to fight the lawsuit, despite the strong likelihood of success, or take advantage of the strong Democratic majorities in both houses of Congress, likely to be thinned in the upcoming midterm elections, to repeal the Dickey-Wicker Amendment.

“They may appeal this, but I wouldn’t be surprised if they try to go back through Congress during the lame-duck session, because the composition of Congress may change significantly after November,” Dr. Stevens said.

First introduced in 1995 and signed by President Clinton, the Dickey-Wicker Amendment has been included every year since then in the appropriations bills funding the Health and Human Services Department. It was named for its two Republican House sponsors, Reps. Jay Dickey of Arkansas, who is no longer in Congress, and Roger Wicker of Mississippi, who now serves in the Senate.

One irony is that the case was originally dismissed by the same judge after he found that the two adult stem cell researchers listed as plaintiffs — James Sherley of the Boston Biomedical Research Institute and Theresa Deisher of AVM Biotechnology — lacked standing, or the legal right to bring a case.

The U.S. Circuit Court of Appeals for the District of Columbia reversed Judge Lamberth in June, stating that the two researchers could bring a case on the basis that their work could be hurt by the added competition for federal scientific funds.

Judge Lamberth’s ruling Monday was not a decision on the merits of the researchers’ lawsuit, which will be tried later. Rather, it blocks the Obama administration’s policy from taking effect while the case is being tried, something judges do only when they think the plaintiffs have a good chance of winning their case.

In his signing ceremony, Mr. Obama said that embryonic stem cell research had the potential for medical breakthroughs that could lead to cures for devastating illnesses and injuries. He said the ethical dilemma should be resolved in favor of helping the living.

“As a person of faith, I believe we are called to care for each other and work to ease human suffering,” Mr. Obama said at the time. “I believe we have been given the capacity and will to pursue this research — and the humanity and conscience to do so responsibly.”

A Justice Department spokeswoman said the administration was reviewing the decision late Monday afternoon.

Mr. Bush had limited stem cell research to the roughly 20 then-existing lines of embryonic cells. The Obama signing order permitted research on cells from any line of embryos that were otherwise scheduled for disposal.

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