Sherley v. Sebelius, 2010 U.S. Dist. LEXIS 86441 (D.D.C. August 23, 2010)
On August 23, the United States District Court for the District of Columbia granted a preliminary injunction blocking the implementation of the National Institutes of Health (NIH)’s July 2009 guidelines for human embryonic stem cell (hESC) research. Judge Royce Lamberth held that “because the Guidelines allow federal funding of ESC [Embryonic Stem Cell] research, which involves the destruction of embryos,” federal funding for hESC research “clearly violate[s]” the Dickey-Wicker Amendment.
The Dickey-Wicker Amendment, an appropriations bill rider originally passed in 1996 and renewed each appropriations cycle thereafter, prohibits the use of appropriated funds for “research in which a human embryo or embryos are destroyed.” P.L. 111-8 § 509 (2009). Judge Lamberth rejected the government’s argument that, under Dickey-Wicker, NIH could support research on hESCs, as long as federal funding did not support the initial derivation of the stem cell lines from human embryos. Judge Lamberth reasoned that the NIH’s interpretation of the Dickey-Wicker Amendment did not deserve Chevron deference because the statute is unambiguous: “the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed. This prohibition encompasses all ‘research in which’ an embryo is destroyed, not just the ‘piece of research’ in which the embryo is destroyed.”
Professor Glenn Cohen of Harvard Law School criticized the order at Concurring Opinions, arguing that “it is hard to find that the statute is ‘unambiguous’ in Chevron terms in the way Lamberth says.” Professor Russell Korobkin of UCLA, writing at The Volokh Conspiracy, found the grant of a preliminary injunction “troubling” because “the balance of hardships tilts strongly in the direction of hESC researchers and the patients who hope their work will lead to cures, not in the direction of the plaintiffs who might see their chances of winning a grant reduced.” Both Cohen and Korobkin predicted that the Court of Appeals for the District of Columbia Circuit will reverse the district court’s grant of an injunction.
The suit was originally brought by Drs. James L. Sherley and Theresa Deisher of Nightlight Christian Adoptions, Embryos (described by the district court as “all individual human embryos that were created for reproductive purposes, but are no longer needed for those purposes”), Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association. The district court dismissed for lack of standing. Sherely [sic] v. Sebelius, 686 F. Supp. 2d 1 (D.D.C. 2009). The appeals court reversed and remanded, holding that Drs. Sherley and Deisher, researchers who work with adult stem cells, had standing “[b]ecause the Guidelines have intensified the competition for a share in a fixed amount” of NIH research funding. Sherley v. Sebelius, 610 F.3d 69, (D.C. Cir. 2010). On remand, Judge Lamberth found that Drs. Sherley and Deisher would suffer irreparable injury without a preliminary injunction.
The district court’s order puts a halt to almost a decade of federally funded hESC research. NIH has sponsored research on hESCs since 2001, when President Bush issued an Executive Order authorizing federal funds for research on a limited number of preexisting hESC lines. In 2009, President Obama expanded the scope of federally funded hESC research with Executive Order 13505, prompting the adoption of the new NIH Guidelines challenged by the plaintiffs. Under Judge Lamberth’s analysis, however, both of the Executive Orders conflict with the plain language of Dickey-Wicker.
In response to the district court’s order, NIH has halted the progress of pending hESC grants to external investigators. In Nature's news blog, Meredith Wadman also reports that NIH has frozen all hESC research conducted on its campus. The Department of Justice has appealed the order.
Jessica Palmer is a 2L at the Harvard Law School.