Federal Court Blocks NIH Grantees from Conducting Research on Embryonic Stem Cells

This Client Alert may be of interest to any recipient of federal grant funds for conducting scientific research.

A federal judge in Washington, D.C. has preliminarily invalidated National Institute of Health guidelines that permit recipients of NIH research grants to use their grant money to conduct research on embryonic stem cells. Holding that the guidelines violate a statutory command to the contrary, the court, per U.S. District Judge Royce Lamberth, stepped into a controversial and long-running public debate about whether the U.S. government should fund such research.

By executive order dated March 9, 2009, president Obama removed Bush administration limitations on funding for embryonic stem cell research, in order “to expand NIH support” for such research, and “to enhance the contribution of America’s scientists to important new discoveries and new therapies for the benefit of humankind.” Under that order, NIH subsequently issued “Health Guidelines for Human Stem Cell Research” on July 7, 2009, permitting NIH grantees to conduct embryonic stem cell research, provided that the cells were derived from embryos that, among other things, “were created using in vitro fertilization for reproductive purposes and were no longer needed for this purpose.”

A group of research scientists and institutions then sued the U.S. Department of Health and Human Services and the NIH seeking an injunction blocking the NIH guidelines, claiming that they contradict the Dickey-Wicker amendment—an annual appropriations rider enacted by Congress that prohibits the use of federal funds for “research in which a human embryo or embryos are destroyed.” The court, without extensive discussion, held that the NIH guidelines directly contradict the Dickey-Wicker amendment, thus justifying the preliminary injunction. The court’s order is subject to modification both by Judge Lamberth, or on appeal.

The 15-page opinion was filed on August 23, 2010, in Sherley v. Sebelius, No. 09-cv-1575 (D.D.C.). For more questions about this opinion, or about Feldesman Tucker’s grants-litigation practice, contact Andrew Adair at aadair@feldesmantucker.com.

This Client Alert is provided solely for educational and informational purposes. It is not intended to constitute legal advice or to create an attorney-client relationship. Readers should obtain legal advice specific to their enterprise and circumstances in connection with each of the topics addressed.