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A researcher removes a new batch of embryonic stem cells from deep freeze to be thawed for study, in March 2009.
A federal judge has for the time being sided with opponents of embryonic stem cell research, temporarily blocking Obama Administration rules that would have expanded the lines of such cells that could be studied by medical researchers.
U.S. District Judge Royce Lamberth granted the injunction because the plaintiffs had a good chance of winning their lawsuit against the Obama Administration, an important legal test judges use to decide whether to issue injunctions.
In his decision giving the injunction, Lamberth ruled that the Obama Administration had relied on an incorrect interpretation of a law first passed by Congress in 1996.
That law, known as the Dickey-Wicker Amendment makes it illegal for the federal government to fund research that resulted from the destruction of embryos.
The Clinton Administration creatively found a way around the law in 1999 by saying that funding research on stem cells, especially if they came from embryos destroyed by private researchers, wasn't the same as funding work on embryos.
Later, the Bush and Obama Administrations essentially relied on the same interpretation, though the anti-abortion Bush limited federal funding to research stem cell lines created by private researchers no later than Aug. 9, 2001.
Obama expanded the population of cells that could be used with the National Institutes of Health issuing complicated guidelines.
But Judge Lamberth appeared to say that these interpretations by both Republican and Democratic administrations were wrong.
Furthermore, he took issue with the Obama Administration's attempt to do an end run around the Dickey-Wicker amendment by arguing that the study of embryonic stem cells wasn't really research, per se, but a "piece of research." It's research, the judge said.
He also knocked down another Obama Administration argument that the human embryos weren't destroyed by embryonic stem cell or ESC research:
ESC research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryo results in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo. ESC research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryoresults in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo.
This is only a district court ruling and will no doubt be appealed by the Obama Administration. Still, it represents a significant legal beatdown by Judge Lamberth.
Updated at 7:17 pm ET — NPR's Julie Rovner passed along a Nature piece in which writer Meredith Wadman in February 2009 seemed to predict Monday's Lamberth opinion.
Louis Guenin, a lecturer on ethics at Harvard Medical School in Cambridge, Massachusetts, believes that an Obama executive order could be successfully challenged in court in the absence of enacted legislation explicitly approving federal funding for stem-cell research. That, he says, is because of the Dickey–Wicker amendment: a law first enacted by Congress in 1995 and renewed each year since, which prohibits US funding of research in which embryos are created or destroyed.
"Anyone concerned about complicity in embryo destruction is keen to spot collaboration, inducement, or artifices to mask them," says Guenin. "In view of congressional intent to prevent taxpayer complicity, 'research in which a human embryo or embryos are destroyed' captures any project whose demand for materials induces embryo destruction."
Other legal scholars disagree with Guenin, and point to a 1999 legal opinion by Harriet Rabb, then the general counsel at the Department of Health and Human Services, which concluded that federal funding for stem-cell research does not contravene Dickey–Wicker because the cells themselves are not embryos and research on already derived cells does not destroy embryos. The Rabb opinion has never been tested in court.
Guenin has caught the ear of some key scientists, including John Gearhart, director of the Institute for Regenerative Medicine at the University of Pennsylvania in Philadelphia. During the presidential transition, Gearhart forwarded a 29-page Guenin memo to Harold Varmus, a former NIH director and a leading member of the Obama transition team. "I am concerned that an executive order is not sufficient to prevent what happened during the Bush administration on stem-cell research," says Gearhart.