Four and half months after oral argument, a three judge panel of the D.C. Circuit has reversed the preliminary injunction against NIH funding of human embryonic stem cell research.
The Court of Appeals Decision
As I predicted in a March 7, 2011 post, the court was split. Judge Douglas Ginsburg wrote a strong majority opinion upholding the government’s argument against the preliminary injunction. Judge Thomas Griffith joined him. Judge Karen LeCraft Henderson dissented, accusing the majority of performing “verbal jujitsu” in ignoring the plain meaning of the Dickey-Wicker Amendment.
I won’t go into all the details of the fight here (see my CLB blog posts for August 31, 2010, as well as September 22 and 28), but, in essence, the controversy concerns the Dickey-Wicker amendment, an appropriations rider passed in every NIH appropriations bill since 1996 (and incorporated indirectly in every continuing resolution covering the NIH). The amendment prohibits NIH from funding “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 . . . . “ [...]