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Federal appeals court dismisses challenge to funding of embryonic stem cell research

The US Court of Appeals for the District of Columbia Circuit [official website] on Friday rejected an appeal [opinion, PDF] of a lower court decision that dismissed a challenge to federal funding of human embryonic stem cell [JURIST news archive] research. The three-judge panel found no error in the July 2011 decision of the US District Court for the District of Columbia [official website] granting summary judgment [opinion, PDF; JURIST report] in favor of the government. The DC Circuit rejected the appellants' argument that the appropriations bill rider known as the Dickey-Wicker Amendment [text], which prohibits federal funding of research that would injure or risk injury to a human embryo, bars the National Institutes of Health (NIH) [official website] from promulgating guidelines that allow research using stem cells that derive from a line that was originally created by destroying such an embryo. The court also rejected alternative arguments that such research risks injury to human embryos by increasing demand for creating more lines of stem cells, and that NIH violated the Administrative Procedure Act [Cornell LII materials] when during its rulemaking NIH dismissed appellants' comments that categorically objected to embryonic stem cell research.

[W]e, as did the district court, must allow summary judgment for appellees, unless appellants have produced in the record at least enough support for their position to establish "a genuine dispute" as to some material fact from which we could discern that the adoption or implementation of the guidelines by the appellees was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." There is no serious dispute of fact in this case. Appellants advance three arguments for invalidating the NIH guidelines, each of which relies upon a proposition of law.
The appellants were two researchers, James Sherley of the Boston Biomedical Research Institute and Theresa Deisher, founder of AVM Biotechnology in Seattle. They were the only two remaining plaintiffs who originally filed the lawsuit, which was dismissed by the DC District Court in 2009 and then reinstated by the DC Circuit [JURIST reports] in 2010 with Sherley and Deisher as the only plaintiffs who did not lack standing.

In August 2010 the DC District Court took up the case on remand from the DC Circuit and issued a preliminary injection [JURIST report] blocking federal funding for the research. On appeal the DC Circuit vacated the injunction [JURIST report] and again remanded to the district court, which granted the summary judgment under appeal in Friday's decision. The NIH controversy arose after President Barack Obama [official website] signed an executive order [text; JURIST report] in 2009 that removed the previous administration's eight-year restriction on federal funding for human embryonic stem cell research. After the preliminary injunction on stem research was granted last year the Obama administration appealed [JURIST report] the injunction, arguing that the ruling was overbroad and endangered an array of research across multiple programs and centers while only serving a very attenuated economic interest of the plaintiffs in the case.

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