September 23, 2010



WASHINGTON, DC (September 23, 2010)  Advocates International (AI), part of the public interest legal team along with the Alliance Defense Fund (ADF) and Gibson, Dunn & Crutcher (GD&C) who brought the case before the court more than a year ago, joined even the government’s opposition and filed their clients’ opposition to the University of California Regents’ untimely and insufficient motion to intervene in a desperate effort to try to protect their patently pecuniary interest in the unlawful, unethical and unnecessary continuance of federal funding of research involving the destruction of living human embryos pending the government’s appeal of the preliminary injunction barring such funding.


GD&C’s Lead Trial Counsel, Tom Hungar, who has argued this case before the federal district court and the Court of Appeals, pointed out the two reasons why the Court of Appeals’ applicable precedents compel the denial of the Regents’ untimely and insufficient intervention motion: “After more than one year of litigation relating to the issues presented in this appeal, the Regents of the University of California (“Regents”) now seek to intervene on appeal as of right, even though their objectives and their interests are identical to those of the Government. Two independent reasons compel denial of the Regents’ motion: First, this Court’s precedent requires the Regents to demonstrate ‘exceptional’ and ‘imperative reasons’ for intervening on appeal at this late stage of the litigation, but they fail even to try to meet this burden. Indeed, they neither acknowledge it nor cite any case from this Court in which such a late-breaking intervention motion was granted. Second, the Government will adequately represent whatever interests the Regents may have in this case. Even the government agrees with us on that point.”


AI’s General Counsel, Sam Casey, adds: “Even the government opposes the Regent’s intervention motions for one of the same reasons plaintiffs oppose—the government - for what it’s worth - is adequately defending the Regents alleged interests. The Regents’ intervention motion is insufficient because the government pending appeal seeks precisely what the Regents seek --a stay of a preliminary injunction that enjoins them from funding research using human embryonic stem cells (“hESC”)—cells derived by destroying living human beings at their embryonic stage of life. This funding violates the plain language of the Dickey-Wicker Amendment, in which Congress prohibits federal funding of “research in which” a human embryo is “destroyed, discarded, or knowingly subjected to risk of injury or death.” Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, § 509(a)(2), 123 Stat. 3034, 3280–81. The district court correctly concluded that granting a stay pending appeal, even of short duration, would “flout[] the will of Congress,” and that “the public interest is served by preventing taxpayer funding of research that entails the destruction of human embryos.”  


The government has filed their reply to plaintiffs’ 147-page opposition to the government’s 165-page request for an emergency stay of the federal district court’s order enjoining the government’s unlawful, unethical and unnecessary federal funding of research involving the destruction of living human embryos pending the government’s appeal of that court’s preliminary injunction order. Oral argument on the government’s stay request before the Court of Appeals for the District of Columbia has been set for September 27 at 10:00 am in Courtroom 31 before Judges Rogers, Griffith and Kavanaugh.


 On September 9, the plaintiff adult stem cell researchers also asked the federal district court for entry of summary judgment in their favor on their request for declaratory and injunctive relief against the National Institutes of Health Guidelines for Human Stem Cell Research (“NIH Guidelines”), 74 Fed. Reg. 32170 (July 7, 2009), because the NIH Guidelines violate the Dickey-Wicker Amendment, Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034, 3280-81, § 509(a), and are arbitrary, capricious, and contrary to law, and were promulgated without observance of procedures required by law, in violation of the Administrative Procedure Act.” GD&C’s Thomas Hungar, explains: “We have asked the federal district court to permanently enjoin the government from implementing, applying, or taking any action whatsoever pursuant to the NIH Guidelines or otherwise funding research involving human embryonic stem cells as contemplated in the NIH Guidelines. We have also asked the Court to order the government to immediately inform any NIH grant recipients in possession or control of federal funds granted under the Guidelines for human embryonic stem cell research that any remaining and unspent NIH-granted funds may not be spent on human embryonic stem cell research but must be returned to NIH to fund lawful research.”


Earlier last week federal district Chief Judge Royce Lamberth, in his 2-page Order, denied the government’s request for an emergency stay pending the government’s appeal of the court’s August 23rd decision and preliminary injunction enjoining unlawful federal funding of “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.”  Then the federal Circuit Court of Appeals for the District of Columbia issued a short “administrative stay” order to give it time to review the government’s request for the emergency stay that the federal district court has already denied. 


The district court’s opinions issuing the preliminary injunction and denying the government’s request for a stay of that injunction pending its appeal followed the decision by the United States Court of Appeals earlier this summer finding that doctors doing adult stem cell research have ‘competitive standing’ to sue. Therefore, the court reinstated the doctors’ federal lawsuit, filed last summer that seeks to preliminarily enjoin and ultimately overturn the NIH’s controversial guidelines for public funding of embryonic stem cell research that the NIH issued on July 7, 2009.  


 Since 1996, in what has been popularly known as its Dickey-Wicker Amendment to each HHS Appropriations Bill, Congress has expressly banned NIH from funding research in which human embryos “are destroyed, discarded, or knowingly subjected to risk of injury or death.”


            The plaintiffs contend that the NIH guidelines violate the congressional ban because they “necessarily condition funding on the destruction of human embryos.” In addition, the plaintiffs also allege that the NIH guidelines were invalidly implemented, because the decision to fund human embryonic stem cell research was made without the proper procedures required by law and without properly considering the more effective and less ethically problematic forms of adult and induced pluripotent stem cell research. 


President Obama, in his March 11, 2009 Executive Order announcing his Administration’s policy stated he was determined to fund ethically “responsible, scientifically worthy human stem cell research…to the extent permitted by law”. Sadly, said AI’s Casey, “these NIH guidelines while claiming to ‘implement’ the President’s directions, failed his own test because they are not only unlawful, they are based upon an ethically irresponsible misunderstanding of available scientific evidence.” 


            As acknowledged by Judge Lamberth in his Order denying a stay of the preliminary injunction, “the length of time this preliminary injunction will be in place should be limited” because, as confirmed by plaintiffs’ legal counsel Hungar and Casey, “plaintiffs are hopeful that the federal district court will favorably rule on our just filed motion for summary judgment and issue its permanent injunction before the end of the year.”


All referenced documents can be obtained by clicking the hyperlinks in the paragraphs above.


OITHER CONTACTS:         Thomas G. Hungar, Gibson, Dunn & Crutcher, 202-887-3648

                                       Steven H. Aden, Alliance Defense Fund, 202-393-8690

                                        Dr. James L. Sherley, 617-990-6819 (bio)

                                        Dr. Theresa Deisher, AVMBiotech, 206-906-9922 (bio)

                                       Peter Robbio, CRC Public Relations, (703) 683-5004, Ext. 116



Advocates International is an international organization of attorneys in over 150 nations, including the United States, who seek to do justice with compassion, including through its Law of Life Task Force protecting the inalienable and sacred right to human life from biological conception to natural death.