UPDATE, 1:43p: Statement by our side’s attorneys:

We are not surprised that the court granted the government a short administrative stay.  The Order itself makes clear that: “The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the emergency motion for stay and should not be construed in any way as a ruling on the merits of that motion.”

As ordered by the court, we will be pleased to timely file our opposition to the government’s 160 page stay request that offers no new arguments not already considered and rejected by the federal district court earlier this week.

We remain confident in our case against the unlawful, unethical and unnecessary federal funding of experimentation on human embryos.

We expect that when the Court of Appeals reviews the merits of the case, it will agree with the logic that led Judge Lamberth to issue the preliminary injunction and to refuse to stay that injunction pending appeal.

12:26p: From Bloomberg, within the hour:

President Barack Obama’s administration can fund embryonic stem-cell research while it appeals a decision banning government support for any activity using cells taken from human embryos, an appeals court said.

The US Court of Appeals in Washington today put on hold a ruling by District Judge Royce Lamberth during its review of the ban. The Justice Dept. argued that the judge’s decision would cause irreparable harm to researchers, taxpayers and scientific progress.

Lifting the ban allows the government to temporarily continue funneling tens of millions of dollars to scientists seeking cures for diseases such as Parkinson’s, spinal cord injuries, and genetic conditions. Embryonic stem cells can grow into any kind of tissue and may have the potential to accelerate a range of research.

“The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the emergency motion for stay and should not be construed in any way as a ruling on the merits of that motion,” the appeals court wrote in its decision.

Opponents of the stem-cell funding have until Sept. 14 to file a response, and the US can submit a response on Sept. 20, the appeals court said.

Lamberth on Aug. 23 issued an order temporarily stopping the Health and Human Services Dept. and the National Institutes of Health from funding or conducting the studies. On Sept. 7, Lamberth denied a US request to reconsider his ruling.

The judge cited the still-in-force 1996 Dickey-Wicker Amendment in his ruling, saying that Congress prohibited funding any research in which a human embryo was destroyed. By implication, that included all stem-cell research, Lamberth said.

“A stay would flout the will of Congress, as this court understands what Congress has enacted in the Dickey-Wicker Amendment,” Lamberth wrote on Sept. 7. “Congress remains perfectly free to amend or revise the statute. This court is not free to do so.”

In March 2009, Obama reversed an executive order of former President George W. Bush to allow research on cells derived from embryos that would otherwise be disposed of after in vitro fertilization procedures.

Under the Bush order, Dickey-Wicker was interpreted to allow research on lines of stem cells that already had been created using human embryos. In his August 2001 executive order, Bush limited federal funding for such research to about 20 existing lines of embryonic cells and banned federal funding on lines created after that time.

Grants Stymied

In his Aug. 23 ruling, Lamberth said the administration was attempting to separate the derivation of the embryonic stem cells from research on them, and “the two cannot be separated.”

Lamberth’s order will prevent the National Institutes of Health from acting on grant applications that have been reviewed, and from considering dozens of other applications that are in the review process, the U.S. wrote in a Sept. 8 appeal. It may take as long as eight months to reinitiate the review process for grant applications, the U.S. said.

“Disruption of ongoing research will result in irreparable setbacks and, in many cases, may destroy a project altogether,” attorneys for the U.S. wrote.

The case is Sherley v. Sebelius, 10-5287, U.S. Court of Appeals for the District of Columbia (Washington).

[HT: Claude]

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