Sherley v. Sebelius: Briefs Argue Whether Federal Funds Incentivize Embryo Destruction

Jul 11, 2011   
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On June 24, 2011, supplemental briefs were filed by both sides in Sherley v. Seleblius, the landmark lawsuit challenging the legality of government funding for research of human embryonic stem cells (hESC). The supplemental briefs, filed with Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia, may be the parties final arguments.

The plaintiffs in this case, Dr. Sherley and Dr. Deisher, brought suit to enjoin the National Institute of Health (NIH) from funding research using hESCs pursuant to the NIHs 2009 Guidelines (the “Guidelines”). They assert that the Guidelines violated the 1996 Dickey-Wicker Amendment by funding hESC research projects. The Dickey-Wicker Amendment bans funding for research “in which a human embryo or embryos are destroyed.”

On August 23, 2010, the District Court granted the plaintiffs motion for a preliminary injunction which stopped the NIH from funding embryonic stem cell research. However, two weeks later, the Government won a temporary stay of the preliminary injunction from the Court of Appeals for the District of Columbia. See our previous report for more information on this decision.

The Court of Appeals overturned the preliminary injunction in April holding the plaintiffs were unlikely to prevail because the Dickey-Wicker Amendment is ambiguous, see our previous report here. The Court of Appeals remanded the case back to the District Court to be decided on the merits by Chief Judge Lamberth.

In their supplemental brief, the plaintiffs argued that “[t]he federally sponsored hESC research that the Guidelines support inevitably creates a substantial risk”indeed, a virtual certainty”that more human embryos will be destroyed in order to derive more hESCs for research purposes.”

The government, in anticipation of the plaintiffs theory, argued the Guidelines interpreted the Dickey-Wicker Amendment to permit the funding of hESC research but to forbid funding for the derivation of hESCs. The government further argued “that the Guidelines Ëœincentivize the donation of future embryos casts no doubt on whether NIH had reasonably interpreted the [Dickey-Wicker Amendment], both because future donors would not be engaging in Ëœresearch in which an embryo is subject to a risk of injury, and because it is not plausible to claim that NIH funded researchers Ëœknowingly create the incentive for future donation.”

Fuerst Ittleman will continue to closely monitor the progress of issues regarding funding for stem cell research. If you have any questions pertaining to new NIH guidelines, or the application process for receiving NIH grants, contact Fuerst Ittleman PL at