Lesley Russell reports from Washington, DC:

With Washington pundits and media consumed with President Obama’s birth certificate and the death of Osama Bin Laden, the ruling last Friday by the United States Court of Appeals for the District of Columbia that says the federal government’s financing of embryonic stem cell research can proceed  while a lower-court judge ponders its legality has failed to attract much attention outside of immediate scientific circles.

This is far from the end of the issue.  More uncertainty awaits as opponents try to derail this promising field of research, and it will be months before the case is fully resolved.  But it is encouraging.

Currently US federal law bans spending public money on research in which embryos are destroyed, as happens when stem cells are extracted. One of President Obama’s first acts on science policy after taking office was to take down barriers to stem cell research set up by President George W. Bush in August 2001. While Bush had limited research on embryonic stem cells to a small number of then-existing cell lines, Obama in March 2009 opened up federal funding more broadly, and ruled that if the cells are derived using private money, the government could pay for the on-going research.

That distinction was challenged by two scientists, James Sherley and Theresa Deisher, who contend that Obama’s loosening of embryonic stem cell funding rules had unfairly diverted money away from adult stem cell research, their specialty.   In September 2010, Chief Judge Royce Lamberth of the Federal District Court for the District of Columbia concluded the plaintiffs had a “strong likelihood” of winning and would be irreparably harmed if their own research had to compete for grants with embryonic stem cell projects. His preliminary injunction on all federal financing was a huge overreach that would have shut down more than 30 promising projects.

That injunction had been on hold (stayed) while the court heard an appeal in the case, Sherley v. Sebelius, so researchers have been able to continue their work during these past months.

Now the appeals court has looked at the same evidence and found that the two scientists who raised the objections are “unlikely to prevail” because the language of the law is ambiguous and the National Institutes of Health had reasonably concluded that government funding for embryonic stem-cell research is not prohibited by a 1996 law that bars the use of federal money for research in which an embryo is destroyed.  The court’s majority also agreed with the Obama administration’s arguments that barring the funding would be a substantial blow to embryonic stem cell research by blocking new projects and undermining existing ones.

Given that the Congress is highly unlikely to resolve this issue with legislation making it unambiguous that the federal government can support research on stem cells derived from human embryos, the final decisions will remain with the courts. The case now goes back to Judge Lamberth, who has already tipped his hat in the plaintiff’s direction.  Hopefully he will reconsider, based on Friday’s ruling.

A central issue in the case is the so-called “Dickey-Wicker” amendment, first passed by Congress in 1996, that bars federal funds to research in which human embryos are destroyed.  Congress has continued to pass the provision each year as a rider to funding bills for the Department of Health and Human Services.

NIH guidelines have accounted for the congressional amendment by making the distinction that stem cells are not embryos. Under the guidelines, the government can fund research on embryonic stem cells once those cell lines have been created with someone else’s money, but can’t pay to derive new stem cells, which are obtained by destroying embryos.

One of the central questions of the case is whether current stem cell research that uses stem cell lines that were derived from embryos years ago qualifies as the same “research” as the original derivation. If it does, then the research is barred by Dickey-Wicker; if not, the research is legal.

The appeals court said that the congressional amendment was ambiguous, but it noted that Congress has continued to pass the provision unchanged, even though it has had “full knowledge” that the Department of Health and Human Services has been funding embryonic stem-cell research since 2001.

The dissenting judge, Karen LeCraft Henderson, wrote that by “breaking the simple noun ‘research’ into ‘temporal bits’ [and] narrowing the verb phrase ‘are destroyed’ to an unintended scope … my colleagues perform linguistic jujitsu” to rule for the government.

Sherley and Deisher are considering appealing the three-judge panel’s decision to an en banc panel of the entire circuit court. Such appeals are quite uncommon, and are usually lost, but their lawyer said he feels they could prevail. The case could reach the Supreme Court.

James Sherley came to Australia in 2006 as the guest of Doctors Against Cloning, and spoke against embryonic stem cell research at a number of forums.

• Dr Lesley Russell is a Senior Fellow at the Center for American Progress in Washington DC.  She is a Research Associate at both the Menzies Centre for Health Policy and the US Studies Centre at the University of Sydney.

Further reading:

Treating Kara with stem cells

NIH rejects stem cell request

The stem cell debate

Poll: Is embryonic stem cell research still necessary?