Appeals court won't halt stem cell research funds

[April 30, 2011]  WASHINGTON (AP) -- Opponents of taxpayer-funded embryonic stem cell research lost a key round Friday in a federal appeals court ruling that gives support to the Obama administration's expansion of the promising but disputed approach to finding disease cures.

In a 2-1 decision, a panel of the U.S. Court of Appeals in Washington ruled that opponents are not likely to succeed in their lawsuit to stop federal financing of stem cell research and overturned a district judge's order that would have blocked the funding.

The panel reversed an opinion issued last August by U.S. District Judge Royce Lamberth, who said the research likely violates the law against federal funding of embryo destruction.

The White House said the ruling was a victory for scientists and patients. "Responsible stem cell research has the potential to treat some of our most devastating diseases and conditions and offers hope to families across the country and around the world," spokesman Nick Papas said.

Researchers hope one day to use stem cells in ways that cure spinal cord injuries, Parkinson's disease and other ailments. Opponents of the research object because the cells were obtained from destroyed human embryos. Though current research is using cells culled long ago, opponents also fear research success would spur new embryo destruction. Proponents say the research cells come mostly from extra embryos discarded anyway by fertility clinics.

A 1996 law prohibits the use of taxpayer dollars in work that harms an embryo, so private money has been used to cull batches of the cells. Those batches can reproduce in lab dishes indefinitely, and the Obama administration issued rules permitting taxpayer dollars to be used in work on them through the National Institutes of Health.

The administration's rules expanded the number of stem cell lines created with private money that federally funded scientists could research, up from the 21 that President George W. Bush had allowed to 91 and counting. To qualify, parents who donate the original embryo must be told of other options, such as donating to another infertile woman.

The lawsuit was filed in 2009 by two scientists who argued that Obama's expansion jeopardized their ability to win government funding for research using adult stem cells -- ones that have already matured to create specific types of tissues -- because it will mean extra competition.

Samuel B. Casey, a lawyer representing the plaintiffs, expressed some disappointment but no surprise at the ruling. He said they will ask the full appeals court to review it, but even if that is rejected, Lamberth "has been waiting to address other issues and the district court can fashion its decision in light of what the appeals court has told it."

Lamberth, the chief judge of the U.S. District Court in Washington, had issued a preliminary injunction in August to block the research while the case continued. The Obama administration immediately appealed and requested the order be stopped. The appeals court quickly ruled in September that the research could continue while they took up the case.

Their answer Friday was that Lamberth's injunction would impose a substantial hardship on stem cell research funded by NIH, particularly because it would stop multi-year projects already under way. The appellate judges also noted that Congress has re-enacted the 1996 embryo-protection law, called the Dickey-Wicker amendment, year after year with the knowledge that the government has been funding embryonic stem cell research since 2001 -- evidence that Congress considers funding of such research permissible.

Amy Comstock Rick, chief executive officer of the Parkinson's Action Network, said while the ruling is technically "a preliminary injunction ruling that is normally the early phase of the case, it appears to us that the court gave pretty clear direction on how it interprets federal law. We hope it puts this issue to rest."

The prediction that the suit will fail came from a conservative panel -- not an encouraging sign for proponents hoping it will ultimately survive. The majority opinion was written by Judge Douglas Ginsburg, nominated to the court by President Ronald Reagan, and supported by Judge Thomas Griffith, a nominee of President George W. Bush. The dissent came from Judge Karen LeCraft Henderson, a nominee of President George H.W. Bush.

Henderson said she agreed with the lower court judge that the lawsuit was likely to succeed and said her colleagues "perform linguistic jujitsu" by taking a straightforward case and issuing an unnecessarily complicated 21-page ruling "that would make Rube Goldberg tip his hat."

Proponents of the suit grasped onto Henderson's strong dissent, including Dr. David Prentice of the Family Research Council. "We believe that further court decisions will support Congressional protections of young human life and divert federal funds toward lifesaving adult stem cells," Prentice said.

As a result of the appellate ruling Friday, the original lawsuit can continue before Judge Lamberth, but the taxpayer-funded research also will go on. Lamberth hasn't thus far either held a trial or issued a final ruling, which he could do based on court filings without taking testimony.

NIH Director Francis Collins called the ruling momentous, "not only for science, but for the hopes of thousands of patients and their families who are relying on NIH-funded scientists to pursue life-saving discoveries and therapies that could come from stem cell research."

[Associated Press; By NEDRA PICKLER]

Associated Press writer Pete Yost contributed to this report.

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