Drs. James Sherley and Theresa Deisher are the two adult stem cell researchers who sued the federal government over federal funding of ESC research. They claimed that NIH funding of ESC research violated the law and also was unfair to them. This case has been bouncing around in various courts over the last couple years and at one point last year caused chaos through an injunction barring NIH funding of ESC research.
Much to the relief of the stem cell research community, the plaintiffs lost their case when the D.C. Court of Appeals ruled against them leading to the judge in the lower court, Lamberth, to dismiss the case before his court.
Now, Sherley and Deisher have reportedly appealed the ruling with the same D.C. Court of Appeals.
What does this mean?
The anti-ESC researchers are asking the D.C. Court to revisit the case again, perhaps hoping that the full court might be more inclined to rule in their favor. It’s difficult to predict how the D.C. Court might handle this appeal, but given that the 3-judge panel of the same court already ruled against the anti-ESC researchers it seems more likely than not that they will Sherley and Deisher will not have much luck.
Ultimately they may try to take their appeal to the U.S. Supreme Court, but I believe that there are specific hoops they have to jump through along the way to do so and filing an appeal with the D.C. Court may be one of them.
If the case were ever to get appealed to the Supreme Court, which at this point is unclear in terms of the odds, the Supreme Court could choose not to accept the case. Alternatively, the Supreme Court might hear the case and at that point who knows how they might rule. There is reason to worry in that scenario given their 5-4 conservative majority.
It is likely that any decision at the Supreme Court level, should one occur, would not be made until about one to two years from now.