Interpreting Judge’s Embryonic Stem Cell Ruling

judge royce lamberth, embryonic stem cell research ban
Judge Royce Lamberth, who issued an injunction on federal funding of ES cell research.

U.S. Federal Judge Royce Lamberth dismissed the lawsuit of two self-proclaimed “adult stem cell” researchers against the government to block federal funding of embryonic stem cell research. (update: you may find a 2020 take on this whole saga to be of interest).

Lamberth was the one who originally seemed to buy into the arguments of the plaintiffs that they were up against unfair competition at NIH and that embryonic stem cell research was really part of the same experiment, the same research as the original derivation of the ES cell lines so many years ago. Lamberth even argued that the plaintiffs were likely to succeed with their case.

It is therefore ironic to see that it is Lamberth himself who brings this story to a close (although it could be reopened in one final appeal–see below).

What does this really mean?

First of all, researchers working on human ES cells can breathe a sigh of relief because at least for the time being, this case is over. Really over!

Second, while the case is over, the plaintiffs can appeal to the U.S. Supreme Court, but I think the tea leaves “or Tea Party leaves” are clearly visible now that their odds of success are extremely low. This may not stop them from going to the Supremes, who are 5-4 conservative, but my prediction is that that Court would refuse to hear the case. It is possible that given the sometimes politically motivated and sometimes even right wing extreme nature of some members of the Supreme Court that they might hear the case and even rule in favor of the plaintiffs, but I think that is now a long shot. Even if that were to happen it would not be for a long time.

Third, while we are in this period of now relative stability for this field of research, it is time to codify into US law the legality of federal funding ES cell research. There is a bill in the works to this effect. However, given the reckless and self-destructive behavior of the Republican-controlled U.S. Congress, which seems inclined to say “no” to everything, I think there is basically zero chance of such a bill passing. That does not mean we should give up hope, but rather we have to be realistic. Such a bill is unlikely to pass before 2012.

Finally, I think this lawsuit against ES cells was about more than ES cells. The two researchers who were the plaintiffs in the case were really harming science more generally and were trying to push their own moral agenda upon the rest of the country. With the dismissal of this case, Science (with a big “S” meaning the field generally) has won a big victory and so have patients across the U.S. who might be helped by this important research. NIH has also won a victory in that there is now legal precedent against researchers filing cases of unfair competition against NIH when their grants are not funded.

All in all, a very good day!

8 thoughts on “Interpreting Judge’s Embryonic Stem Cell Ruling”

  1. @Rumit

    I wrote already that going to court (backed by fundamentalists) was not a good idea. Still I keep the point: we can not say that if somebody raises ethical issues in doing research then he is against science. Statements of this kind abound in the press and in blogs. It is all too easy: bad anti-science fanatics on one side and pure scientists that want to cure patients on the other side. Gimme a break!

  2. For those interested….
    Uploaded by CIRMTV on Jul 29, 2011
    Geron’s Embryonic Stem Cell Clinical Trial for Spinal Cord Injury

    Dr. Jane Lebkowski, executive vice president and chief scientific officer at Geron Corporation, gave the keynote address for the 2011 CIRM Bridges Trainee Meeting. Last year, Geron began the first clinical trial in the world using human embryonic stem cells. CIRM recently approved a $25 million loan to Geron to assist in this trial. The embryonic stem cells used in the trial are being tested as a potential therapy for spinal cord injury. Lebkowski reviewed the work leading up to the trial and gave the latest update on its progress.

  3. @Stefano Zapperi


    That is a fair point. He is not a “self proclaimed” adult stem cell researcher, he IS an adult stem cell researcher.

    Concerning your second point, “I find simplistic (and very convenient) to label anyone raising ethical issues on ESC as a religious fundamentalist who is against science.”

    This statement would carry a lot more weight if the financial support and legal counsel the plaintiffs were receiving were not provided by religious fundamentalists who are against science.

    The main legal counsel is the Alliance Defense Fund:

    WASHINGTON — Alliance Defense Fund attorneys together with Samuel B. Casey of the Jubilee Campaign’s Law of Life Project and Tom Hungar of Gibson, Dunn & Crutcher, LLP, are weighing all of their options for appeal in light of a federal judge’s ruling Wednesday that allows federal funding of embryonic stem cell research to continue. The judge explained that he believes his hands have been tied by an appellate court decision that reversed his August 2010 order to stop the funding in light of a federal law that prohibits it.

    About the Alliance Defense Fund

    The Alliance Defense Fund is a servant organization that provides the resources that will keep the door open for the spread of the Gospel through the legal defense of religious freedom, the sanctity of life, marriage and the family.

    “The Alliance Defense Fund is a legal alliance defending the right to hear and speak the Truth
    through strategy, training, funding, and litigation.”

    Responding to the urgent need for a strong, coordinated legal defense of religious freedom, the leaders of more than 35 ministries – including the late Dr. Bill Bright, the late Larry Burkett, Dr. James Dobson, the late Dr. D. James Kennedy, and the late Marlin Maddoux – came together and launched ADF in 1994 to aggressively defend religious liberty by empowering our allies, recognizing that we can accomplish far more together than we can alone.

    “I am the vine; you are the branches. If a man remains in me and I in him,
    he will bear much fruit; apart from me you can do nothing.”
    John 15:5

  4. Ting,

    The plaintiffs absolutely were attacking science in general terms. The crux of their argument was that they (Sherley and Deisher) were harmed because they had to compete with hESC researchers for funding. This is ludicrous! The entire grant writing/approval/award system is based on competition, wherein (supposedly) the best and most interesting proposals win grants. Those proposals that are less interesting or not as useful are not awarded grants.

    This is a very slippery slope! Imagine if skin cancer researchers filed a suit against the funding of breast cancer researchers because they feel it is unfair to compete.

    The icing on the cake is the fact that the NIH funds a lot more adult stem cell research than hESC research.

    Finally, Deisher has never even applied for an NIH grant. I still don’t understand how the court decided she even had standing.

    This brings me to my next point. Paul, I don’t think you mentioned the first strange turn of events in this case. Lamberth ORIGINALLY rejected the lawsuit because he said the plaintiffs did NOT have standing. It went back to Lamberth after the appeal, and he filed the injunction.


    “The suit was filed in August of 2009, then dismissed two months later in DC District Court by a judge who ruled that none of the plaintiffs had standing to sue. Nearly a year later, a U.S. Court of Appeals judge ruled that Sherley and Deisher should be granted standing, as Obama’s order put their livelihoods as adult stem cell researchers at risk.”

  5. I have followed this story for quite a while now, and I was so pleased to read this this morning. I do hope this is a victory for common sense at last. I hope there won’t be a protracted ‘post mortem’ on the case. I also fervently hope that everyone can now move past it and instead of looking sideways or down or behind, can now look up.

  6. The point is that the plaintiffs in the case made a point of creating a dividing line between researchers who work only on adult stem cells and those who work on embryonic stem cells, when in fact most researchers work on a variety of stem cells and most scientists who work on embryonic stem cells also work on so-called “adult stem cells”. In addition, one of their arguments was that adult stem cell researchers were under unfair competition at NIH against embryonic stem cell researchers. So they were the ones who defined themselves and others in that way during the case. There was no contempt intended. I know these folks are scientists and I’m sure they are good ones. The post was focused on the legal case.

  7. Stefano Zapperi

    Whatever you think about the case, stating that Sherley is a “self-proclaimed adult stem cell researcher” is just a contemptuous (and wrong) statement. Sherley is an adult stem cell researcher in that he works on adult stem cells and has published several papers on the subject. Just go to Pubmed and check! Also while I think a court is not a good place to discuss these matters, I find simplistic (and very convenient) to label anyone raising ethical issues on ESC as a religious fundamentalist who is against science.

  8. I don’t think “The two researchers who were the plaintiffs in the case were really attacking science more generally and were trying to force feed their own moral agenda upon the rest of the country”.

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