D.C. Circuit Upholds Obama Administration Embryonic Stem Cell Research Guidelines

In Sherley v. Sebelius, (DC Cir., Aug. 24, 2012), the U.S. Court of Appeals for the D.C. Circuit upheld the Obama administration's embryonic stem cell research Guidelines against a claim that they violate limitations on such research imposed by Congress under the Dickey-Wicker Amendment.  This was the third time the case was before the Circuit Court.  Invoking the law of the case, Chief Judge Sentelle held that, as the court had previously decided, "Dickey-Wicker  permits federal funding of research projects that utilize already-derived ESCs—which are not themselves embryos—because no 'human embryo or embryos are destroyed' in such projects."  He also rejected plaintiffs' argument that research on embryonic stem cells violate the ban on subjecting embryos to risk because such research incentivizes the destruction  of  more  embryos  to  create  more cell  lines. Finally he rejected claims that NIH violated the Administrative Procedure Act in issuing the Guidelines without responding to various comments that had been submitted. Judge Henderson and Judge Brown each filed separate opinions concurring in the result, but disagreeing about the extent of deference that should have been given to the NIH's interpretation of the Dickey-Wicker Amendment. (See prior related posting.) AP reports on the decision.