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Published: Friday, 4/29/2011

Appeals court overturns judge's ban, allows stem cell research to go on for now

ASSOCIATED PRESS

WASHINGTON — Opponents of taxpayer-funded embryonic stem cell research lost a key round in a federal appeals court Friday.

In a 2-1 decision, a panel of the U.S. court of appeals in Washington overturned a judge's order that would have blocked federal financing of stem cell research. The judges ruled that opponents are not likely to succeed in their lawsuit to stop the government 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 praised the ruling. "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," said spokesman Nick Papas. He said the ruling was a victory for scientists and patients.

Researchers hope one day to use stem cells in ways that cure spinal cord injuries, Parkinson's disease and other ailments. Opponents say the research is a form of abortion because human embryos must be destroyed to obtain the stem cells.

The 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.

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.

Lamberth, the chief judge of the U.S. District Court in Washington, 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 that the research could continue at the National Institutes of Health while the judges took up the case.

The appeals court ruled Friday that Lamberth's injunction would impose a substantial hardship on stem cell researchers at NIH, particularly because it would stop multi-year projects already underway. 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.

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."

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.

"We're thrilled with this decision and look forward to allowing federally funded scientists to continue with their work without political constraints," said Sean Tipton, a spokesman for the American Society for Reproductive Medicine.

Once the cells are culled, they can reproduce in lab dishes indefinitely. So government policies said using taxpayer dollars to work with the already-created batches of cells is allowed.

The Obama administration has 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 at least 75 so far. To qualify, parents who donate the original embryo must be told of other options, such as donating to another infertile woman.

Congress twice passed legislation specifically calling for tax-funded stem cell research, which Bush vetoed.

Alan Leshner, chief executive officer of the American Association for the Advancement of Science, said that "the decision normalizes the original judgments made by policymakers — that you could use cells developed with non-government money. What we need is to pursue all approaches — adult stem cells, embryonic stem cells, core blood. The overall promise is so great that we can't afford to pick one approach prematurely."



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