The Court of Appeals reversed 2-1 Judge Royce Lamberth’s immediate injunction against NIH funding of ESCR. This changes nothing on the ground, as the original decision was already stayed. The reversal does not end the case, but returns it to Lamberth for further proceedings or trial. And then, more appeals, with a final decision perhaps by the U.S. Supremes.
I was going to do an original post here, but before I had the chance, The Corner asked for a comment. So, I did it there, and now link it here. From my conclusion to “The Court Fight over Embryonic-Stem-Cell Research Is Not Over Yet:”
I think Lamberth is correct about the intent of Congress at the time the law was first enacted. But the language of Dickey-Wicker, which is passed annually as part of the budgetary process, preceded the emergence of embryonic-stem-cell research. Considering that Congress repeatedly overturned the Bush policy — but was unable to override presidential vetoes — I doubt that a law would be passed today explicitly following Judge Lamberth’s reasoning. But that should be irrelevant. The law should be construed as written. Unless the language is changed the next time Dickey-Wicker is passed — or isn’t passed at all, which would moot the case — I think Lamberth has the better side of the factual and legal argument. Of course, given the intensity of the politics swirling around the issue, fact, law, and $2 will buy you a cup of Starbucks Coffee.
The good news, from my POV, is that ESCR is losing its sheen. If the IPSCs and adult stem cell breakthroughs continue at the current pace, we may see a diverting of NIH funding more robustly in those directions—as we already have from the hopefully short-lived spendthrift California Institute for Regenerative Medicine.
