Judge Stops Federal Funding of Embryonic Stem Cell Research

Chief Judge Royce C. Lamberth (pictured), of the Washington, D.C., Federal District Court issued an injunction yesterday that prohibits further federal funding of embryonic stem cell research. The ruling appears to be more restrictive than President Bush's 2001 policy, which was viewed as extremely limited. At issue is a rider to the federal budget that has been enacted with every budget since 1996, which bans federal funds for research involving the destruction of embryos. The government had planned to spend about $137 million on embryonic stem cell research in 2010 and another $126 million next year.

Since 1999 the Department of Health and Human Services has interpreted the ban as meaning federal funds could not support the creation of embryonic stem cell lines, because the creation of the cell lines involved destroying an embryo. However, funds could support experiments on embryonic stem cells that had already been created, because once the stem cell lines were available, no other embryo destruction was required.

Untangling Past Policies

Reflecting that basic distinction but wanting to sharply limit federal funds for embryonic stem cell research, the Bush administration announced in 2001 that funding would only go to work involving the cell lines then in existence; no new embryos would be destroyed to create cell lines. Nonetheless funding work with the existing cell lines still provided support to research that had at one point involved the destruction of an embryo. The Obama administration lifted the Bush-era restriction, reverting to a broad split between funding the creation of embryonic stem cell lines and funding the research on embryonic stem cells.

After the new policy was announced, two doctors -- James Sherley of the Boston Biomedical Research Institute and Theresa Deisher of AVM Biotechnology -- who do research on adult stem cells and who would, in light of Obama's policy, be competing for federal research funds with a drastically larger cohort of embryonic stem cell researchers, sued (and successfully proved they had the standing to sue) to overturn the policy. Their claim was that it violated the budget ban on funding research involving the destruction of embryos. Since you can't have an embryonic stem cell line without destroying an embryo, the plaintiffs noted, all embryonic stem cell research involved the destruction of an embryo at some point. Chief Judge Lamberth agreed, and issued the injunction.

The Future is Uncertain

The immediate implication of the decision isn't clear. The logic of the ruling compels the prohibition on funding research using the Bush-era stem cell lines, an idea that surprised the plaintifs and may not have been contemplated by the judge. Does it mean that new federal grants cannot be issued? Or that work involving grants already awarded must stop? It certainly doesn't mean all embryonic stem cell research will stop. The ruling neither affects private grants nor grants from the State of California. But it is considered a huge blow to the field nonetheless.

Although in issuing the injunction Judge Lamberth decided that plaintiffs were likely to succeed on the merits and specifically addressed the fact that federal agencies are due a lot of deference in how they interpret statutes, at least one online-commenting administrative law professor thinks the ruling won't hold up.

Only time -- and the courts -- will tell if the professor is right. The market, meanwhile, is already responding.