The D.C. Circuit panel that will decide whether the federal government may fund embryonic stem cell research includes two judges who have decided prior appeals in favor of the challengers.
Judge Janice Rogers Brown was on the panel that held the scientists, who benefit from federal funding of their adult stem cell research, have standing to challenge federal funding of embryonic stem cell research. [Opinion PDF]
Judge Karen LeCraft Henderson dissented in favor of the the plaintiffs when the D.C. Circuit vacated a preliminary injunction against HHS’s funding of the controversial research. [Opinion PDF]
The merits appeal involves the same question that provoked Judge Henderson’s dissent–whether embryonic stem cell research is the sort of “research in which a human embryo or embryos are destroyed,” for which the Dickey-Wicker Amendment bars appropriations. The majority said the statute was ambiguous and deferred to the Government’s interpretation. The district court followed that reasoning in ruling for the Government on the merits. Judge Lamberth held that he was bound by the mandate rule to follow the panel’s interpretation of the law. But the legal conclusions of the preliminary injunction panel are not the law of the case and do not bind the merits panel. Plaintiffs have raised other arguments against HHS’s policy that were not before the prior panel.
Judges Brown and Henderson were also on the motions panel that granted a stay of the district court’s preliminary injunction pending appeal. [Order PDF]
The third member of the merits panel is Chief Judge David B. Sentelle.
(Hat Tip: Jocelyn Kaiser, Dates, Judges Set in Appeal of Stem Cell Suit, Science Insider (Dec. 9, 2011))
- Embryonic Stem Cell Research Foes File Appeal (Sept. 19, 2011)
- Meredith Wadman, Plaintiffs in US stem cell case try again, Nature News Blog (Jan. 12, 2012) (“[E]ven the best possible outcome for supporters of human embryonic stem cell research – a clear affirmation from the court that Dickey-Wicker allows the government to fund the research — would not provide iron-clad protection for scientists who rely on federal funding.  If Republicans win back the White House, “there would be nothing, unfortunately, stopping the next president from issuing another executive order with a different policy” than Obama’s permissive one, says Amy Comstock Rick, a lawyer who is president of [the Coalition for the Advancement of Medical Research].”).