A federal district court in Washington, D.C., has dismissed a challenge to National Institutes of Health (NIH) guidelines on stem cell research funding. Sherley v. Sebelius, No. 09-1575 (U.S. Dist. Ct., D.D.C., decided July 27, 2011). The court had previously granted a preliminary stay of the guidelines, after the D.C. Circuit Court of Appeals overturned its earlier ruling that the challengers lacked standing to pursue the litigation. The appeals court then reversed the stay, finding that the plaintiffs were unlikely to prevail on the merits. Additional information about that decision appears in Issue 13 of this Bulletin.

The district court determined that the agency reasonably interpreted ambiguous federal law in developing the guidelines and that they were properly promulgated. The guidelines reflect a shift in White House stem cell policies occurring with the election of President Barack Obama (D) in 2008. His predecessor allowed federal funding of research involving embryonic stem cells, but only those that had been created before he addressed the nation about his policy on August 9, 2001. Current NIH guidelines allow federal funding of research using embryonic stem cells created since then, but not the research that derives the cells from human embryos, resulting in their destruction.

In its opinion, the district court notes that several of the legal issues the plaintiffs raised had been conclusively determined when the court of appeals considered whether the preliminary injunction was proper. Among them was whether the Dickey-Wicker Amendment, which Congress enacted to place restrictions on stem cell funding, was ambiguous and whether the courts were required to defer to NIH’s interpretation of the amendment. Saying that it was bound by the “mandate rule” to obey appellate court rulings on issues of law, the court answered yes to both questions.  

The court also found that NIH did not violate the Administrative Procedure Act by failing to respond to thousands of public comments calling for a wholesale ban on funding embryonic stem cell research. According to the court, the president’s executive order “required the promulgation of Guidelines for funding embryonic stem cell research, and the NIH wasn’t obligated to consider comments that, if adopted, would cause it to disobey the President and create an unlawful rule.” Counsel for the plaintiffs has reportedly indicated that they are weighing whether to appeal the court’s determination. See Law360, July 27, 2011.