On April 29, in a 2 to 1 decision, the United States Court of Appeals for the District of Columbia Circuit issued its final opinion on a preliminary injunction in the Sherley v. Sebelius case.

Recall adult stem cell researchers filed this lawsuit, contending that President Obama’s authorization of taxpayer funding of new embryonic stem cell research violates the Dickey-Wicker ban on federal funding for research that involves harming or destroying embryos.

This is not a final decision on the case overall. It is a decision on the preliminary injunction that was issued by Judge Royce C. Lamberth on August 23, 2010, which halted funding while the case was being considered. On September 9, 2010, the DC Court of Appeals granted an administrative stay, temporarily lifting the preliminary injunction.

So, “[w]hile the preliminary injunction has now been vacated, a ruling on the substance of the case still rests with Judge Lamberth,” writes Nature.com. “Both sides have asked him to rule speedily on the matter.” Lamberth was appointed to his position by President Ronald Reagan.

In addition, according to Nature.com:

Samuel Casey, a lawyer with the Law of Life Project in Washington, D.C., who is working with defendants James Sherley and Theresa Deisher, said after reviewing the opinion that the scientists’ legal team is considering asking the Court of Appeals to reconsider the preliminary injunction’s merits en banc, meaning that all 13 judges on the court would consider it….

If asked, the Court of Appeals is not obliged to grant an en banc hearing. Casey says however that strong dissents like Henderson’s [see below] may encourage a full court to do so.

Another route still open to the plaintiffs is an appeal to the US Supreme Court.

Who were the 2-1 judicial decision makers? Judge Douglas Ginsburg, who wrote the majority opinion, was also nominated to the court by Reagan. Judge Thomas Griffith, a George W. Bush appointee, supported Ginsburg’s opinion. Judge Karen LeCraft Henderson, nominated by President George H. W. Bush, wrote the dissenting opinion, accusing her colleagues of “linguistic jujitsu” in making their decision.

Lamberth was appointed by Reagan.

Which side will ultimately win? Quoting Bloomberg News:

The appeals court found that the plaintiffs were unlikely to succeed on the merits of their case so the “extraordinary remedy” of a preliminary injunction could not be justified….


The plaintiffs’ challenge is likely to succeed because the amendment prohibits federal funding of embryonic stem cell research “in all of its sequences,” LeCraft Henderson wrote.

The “jujitsu”? Again according to Bloomberg:

The government said the stem-cell research is separate from any that destroys the embryo because the cells must be grown in a medium and are then “differentiated” into other cells, such as nerve cells.

The appeals court agreed with the government’s contention that because the Dickey-Wicker Amendment is written in the present tense the “statute strongly suggests it does not extend to past actions.”

[Photo via CNN]

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