WASHINGTON, Jan. 7, 2013 /Christian Newswire/ -- Today, on behalf of the adult stem researchers it represents, the Jubilee Campaign's Law of Life Project and their co-counsel at the Alliance Defending Freedom and Gibson, Dunn & Crutcher, expressed great disappointment that the United State Supreme Court declined to hear their petition for certiorari. The petition made two central arguments: first, that the D.C. Court of Appeals erred in holding that President Obama's Executive Order issued in 2009 can and did excuse an agency's failure to comply with the Administrative Procedure Act; and second, that that a preliminary injunction ruling is binding 'law' of the case. In declining to hear the case, the Supreme Court did not decide these questions, but did effectively end the case.

 

Petitioner adult stem cell researcher Dr. James Sherley said:

 

"There are many human histories that teach us that the path to ending obvious inhumanities against humanity can be blocked by the blunt dismissal of knowledge and reason. The course of our court case to emancipate human embryos from research slavery sponsored by the NIH is yet another of these histories. Today's refusals by the Supreme Court to hear our case is not the ending of our cause. Instead, it provides a new basis for educating the world that embryos are living human beings, worthy of all the safeguards provided to other human research subjects. "

 

Petitioner adult stem cell researcher Theresa Deisher said:

 

"This lawsuit brought critical information into the public forum that had been suppressed by embryonic stem cell proponents. While the legal fight seems to have been lost for now, unless and until Congress acts to correct this waste of taxpayer funds, this case brought adult stem cells to the forefront of many scientists' minds and contributed significantly to the adult stem cell progress and focus that many scientists and clinicians are following. Without this suit many of these scientists and clinicians might have traveled blindly down the embryonic and aborted fetal stem cell roads. Patients will benefit because we raised the issue and brought awareness to the importance of adult stem cells. Adult stem cells continue to be safe, effective and affordable while embryonic and aborted fetal stem cells therapies fail patients by their tumor forming capacity, exorbitant cost and moral harms."

 

Petitioners initially brought this case over three years ago when, in response to President Obama's March 9, 2009, Executive Order, the NIH published and noticed for public comment regulatory guidelines allowing federal funds to be used for the first time for the creation of new stem cell lines (hESC) requiring and providing incentives for the destruction of living human embryos. The Petitioners contended then--and, indeed, continue to argue--that the National Institutes of Health (NIH) Guidelines for funding human embryonic stem-cell research are invalid because they not only disregard the limitations in the Executive Order but also violated the plain language of federal law known as the Dickey-Wicker Amendment and because they were promulgated in violation of the Administrative Procedure Act. The Dickey Wicker Amendment currently prohibits the use of federal funds for "(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 C.F.R. 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g (b))." Pub. L. No. 112-74, § 508. "Congress enacted the Amendment 'in reaction to a 1994 NIH panel report,'" which "advocated federal funding of research 'designed to improve the process of in vitro fertilization, to determine whether embryos carried genetic abnormalities, and to isolate embryonic stem cells." Sherley v. Sebelius, 644 F.3d 388, 400 (D.C. Cir. 2011) (Henderson, J., dissenting). The Dickey-Wicker Amendment has been included in every Health and Human Services appropriations bill since 1996, and has not been altered in any material respect. Thus, Congress continues to prohibit federal funding for "research in which" an embryo is "destroyed, discarded, or knowingly subjected to risk of injury or death."

 

Sam Casey, JC-LOLP's General Counsel who served as co-counsel for Petitioners in the case, described the implications of the Supreme Court's ruling today saying:

 

"After almost four years of litigation the courts are apparently telling Congress that the Dickey-Wicker Amendment's language isn't plain enough to achieve its intentions. To fix this 'ambiguity' Congress at least will need to consider changing the phrase "research in which" to "research involving" and the phrase "are destroyed" to "are or have been destroyed." Hopefully, Congress will do so, along with any other steps deemed necessary to once again make plainly unlawful the federal funding of destructive human embryo research which the record shows continues to be an unnecessary, unethical and a wasteful use of the federal taxpayer's money."

 

After the NIH initially promulgated its proposed guidelines, they received approximately 49,000 public comments, more than 60% of which—that is, approximately 30,000—raised serious and highly relevant questions about the ethics and scientific merits of human embryonic stem cell research. The NIH refused to consider those comments, however, erroneously saying that the President's Executive Order precluded such consideration that would otherwise have been required by the Administrative Procedure Act. Nevertheless, the D.C. Circuit Court of Appeals incorrectly held that NIH's refusal to address numerous comments that it received in promulgating the Guidelines was justified by an executive order (Executive Order 13,505) issued by President Obama. 

 

Petitioners' request for certiorari argued that the D.C. Circuit's holding embraces a fundamentally mistaken and unprecedented view of Executive power, authorizing the President to exempt agencies from the APA's requirements at will: "If allowed to stand, the decision below would eviscerate the vital checks that Congress has imposed on agencies to ensure transparency, accountability, and rationality in administrative decision-making."

 

Under the D.C. Circuit's erroneous rulings, Petitioners couldn't challenge the NIH's guidelines directly. Accordingly, the petition argued that because the President cannot dictate the outcome of a rulemaking in advance, declare all dissenting views and contrary data irrelevant, and essentially circumvent the ban on arbitrary and capricious agency action by instructing an agency to act in a way that plainly violates federal law, the D.C. Circuit was wrong to reject Petitioner's claim that the NIH Guidelines violate the Administrative Procedure Act. Additionally, the petition contended that the D.C. Circuit wrongly declined to resolve Petitioners' claim that the NIH Guidelines violate the Dickey-Wicker Amendment, by ruling that the preliminary-injunction decision in this case was a "definitive, fully considered [one]" made on what it later deemed a "fully developed factual record." Petitioners were relying on Supreme Court case law holding that rulings by a court granting a preliminary injunction are not binding at later stages of the case, so the D.C. Circuit panel erred in concluding that the preliminary-injunction ruling resolved the Dickey-Wicker Amendment claim. 

 

Thus, this appeal to the United States Supreme Court was necessary to correct procedural errors made by the courts below so that this important case could be resolved in the courts below on the merits. The Jubilee Campaign Law of Life Project's General Counsel, Sam Casey, concluded by saying:

 

"Sure we are disappointed that the Court declined to hear our clients' case. Each time federal grant money is awarded to support human embryonic stem cell research, living human embryos are at risk. Not only is this an ethical tragedy, as well as a waste of taxpayers' money on unethical research that has not to date led to any therapeutic benefits, but it is also a clear violation of what we believe Congress intended when it passed the current federal law known as the Dickey-Wicker Amendment. Sadly, the DC Circuit Court of Appeal found ambiguity in the statutory language that we continue to believe is not there. We also think that the President, by authorizing NIH non-compliance with federal law, overstepped his legal boundaries, and it is now imperative that Congress step in to clarify the law. The Constitution and the Supreme Court say Congress enacts the laws in this country, not the Executive Branch. Now that the Supreme Court has declined to hear our case, the matter necessarily returns to Congress who will have to decide whether to amend the Dicker-Wicker Amendment to make it even clearer for the courts that Congress does not want NIH expending federal taxpayer funds on unethical and unnecessary embryonic stem cell research that requires the destruction of living human embryos."

 

 

 

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