U.S. Supreme Court Asked To Review Federal Funding Of Human Embryonic Stem Cell Research

On October 10, 2012, two pro-life groups petitioned the U.S. Supreme Court to review and reverse the U.S. Court of Appeals for the District of Columbia Circuit Court's decision allowing the continued federal funding of research involving human embryonic stem cells ("hESCs"). A copy of the petition for certiorari is attached here and our review of the history of the case can be found in our prior posts of August 27, 2012 and July 28, 2012.

Questions Presented

Two questions were presented to the Supreme Court for review:

"1. Whether the Court of Appeals erred in holding that an Executive Order can and did excuse an agency's failure to comply with the Administrative Procedure Act.

2. Whether the Court of Appeals erred in holding that a preliminary injunction-ruling is binding law of the case, contrary to this Court's settled rule that 'the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.' Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)."

A Brief History

On March 9, 2009, President Barack Obama's signed an Executive Order that overturned the previous administration's policy banning the use of federal funds for research using embryonic stem cells created after August 9, 2001. (Removing Barriers to Responsible Scientific Research Involving Human Stem Cells, Executive Order 13505, 74 Fed. Reg. 46, 10667 (March 11, 2009)). Soon thereafter, a group of plaintiffs filed suit challenging the NIH's authority to issue the 2009 NIH Guidelines ("Guidelines") that implemented President Obama's 2009 Executive Order. Plaintiffs argued that legislation known as the Dickey Amendment or the Dickey-Wicker Amendment bans the use of federal funding to support research involving human embryos. Congress originally passed this legislation in 1996, and former President Clinton signed it into law. The Dickey Amendment prohibits the Department of Health and Human Services (HHS), which includes the NIH, from funding research where human embryos are destroyed. Congress has included the Dickey Amendment in every subsequent HHS appropriations bill without substantial alteration. In subsequent years, the rider was enacted in Title V (General Provisions) of the Labor, HHS, and Education Appropriations Act.

On August 24, 2012, Judge Sentelle of the Court of Appeals wrote the opinion under review. Judges Henderson and Brown wrote separate concurring opinions. The court held that the 2009...