A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held a hearing yesterday in the case seeking to challenge the executive order President Barack Obama handed down forcing taxpayers to finance embryonic stem cell research.
Obama forced funding of the research with public funds even though embryonic stem cells have yet to work successfully in animals because they cause tumors and face immune system rejection issues.
Sherley v. Sebelius is a lawsuit challenging an Obama administration policy that authorized the National Institutes of Health to fund additional research projects that destroy human embryos even though a federal law known as the Dickey/Wicker Amendment specifically prohibits such funding.
ADF attorney Matt Bowman told OneNewsNow that is firm is asking the court to reverse a federal district judge’s ruling that the National Institute of Health’s research on human embryos can go forward, in spite of a federal law to the contrary.
“This case is challenging President Obama’s executive order to really ignore the federal law that protects American tax dollars from being used to destroy human embryos and goes ahead and has funded millions and millions of dollars’ worth of destructive research,” Bowman shares.
A law passed by Congress called the Dickey/Wicker Amendment expressly prohibits the use of funds in grants subsequently issued by the National Institutes of Health. ADF argues that federal law trumps any order issued by the president.
“Federal statute is supposed to be followed, even by the president,” the attorney offers, “and we’re hoping that the court will agree that American taxpayer dollars should not be forced to pay for these destructive experiments in violation of federal law.”
During the hearing, a top Department of Justice attorney said federal funding restrictions do not prohibit research involving human embryonic stem cells.
Beth Brinkmann, a deputy assistant attorney general in the Civil Division, urged a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to uphold a lower judge’s ruling that dismissed a suit that tried to block enforcement of National Institutes of Health guidelines promulgated in 2009.
Federal law prohibits funding research “in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death.” Brinkmann told the appeals court panel that the restrictions do not apply to projects in which a stem cell line was originally created.
The D.C. Circuit panel today was Chief Judge David Sentelle and judges Karen LeCraft Henderson and Janice Rogers Brown. Henderson was on the panel last year that overturned U.S. District Judge Royce Lamberth, who had granted a request for a preliminary injunction. (The other two judges were Douglas Ginsburg and Thomas Griffith. Henderson voted in support of the preliminary injunction.)
Sentelle today questioned whether and to what extent the earlier D.C. Circuit ruling was binding on the appeals court. Brinkmann said the law of the case and the law of the circuit should favor the government. The appeals court, she said, was being asked to decide the same legal claim the court already rejected.
On the other hand, Dunn & Crutcher associate Ryan Watson aruged for the plaintiffs and said the National Institutes of Health guidelines “blatantly” violated the Administrative Procedure Act, which governs how agencies propose and adopt rules.
Watson argued on behalf of two plaintiffs, doctors James Sherley and Theresa Deisher, who perform research on adult stem cells. Watson, who practices in appellate litigation, said among other things that the NIH failed to take notice of more than 30,000 comments addressing scientific and ethical concerns about the guidelines. Sentelle suggested in questioning that comments may have been outside the scope of the executive order President Barack Obama issued.
Justice Department lawyers said in court papers that Obama’s executive order directed NIH to assess new guidelines over human embryonic stem cell research. The order did not mandate that the NIH fund any such research.
The appeals court panel did not issue an immediate decision on the case.
