DC Court of Appeals Dramatically Reinstates Advocates' Challenge to the Obama Administration's Unlawful Policy of Funding Destructive Embryonic Stem Cell Research


An Advocates International Advocacy Briefing           
June 25, 2010
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Our Featured Advocates
Dr. James Sherley, Ph.D.
Dr. James Sherley

James L. Sherley

, M.D., Ph.D., is a senior scientist in regenerative biology and cancer at the Boston Biomedical Research Institute. He earned his M.D. and a Ph.D. in molecular biology from the Johns Hopkins University School of Medicine in 1988.

     Dr. Sherley is a 2004 National Institute of Health (NIH) Pioneer Award recipient. Dr. Sherley's research focuses on elucidating mechanisms responsible for the specialized renewal properties of adult stem cells and using this knowledge to address major research problems limiting the development of adult stem cells for biomedicine. His honors also include an award from the Pew Scholars Program in the Biomedical Sciences, selection for the Pew Science and Society Institute, and the Ellison Medical Foundation Senior Scholar Award in Aging.

Thomas G. Hungar

 is a  partner at the law firm of Gibson, Dunn &Crutcher (GD&C).

 Mr. Hungar, with the legal research and writing assistance of his hard-working co-counsel at GD&C, Advocates International, and the Alliance Defense Fund, successfully argued the case on behalf of Dr. Sherley and the other plaintiffs before the United States District Court of Appeals for the District of Columbia.

     Mr. Hungar' served as Deputy Solicitor General of the  United States from 2003 until 2008.  In this capacity or as private counsel of record, Mr. Hungar has presented oral argument before the Supreme Court of the United States in 24 cases, including some of the most important patent, antitrust, securities, and environmental law decisions issued by the Court in recent years, and he has also appeared before numerous lower federal and state appellate courts.

DC Court of Appeals Dramatically Reinstates Advocates' Challenge to the Obama Administration's Unlawful Policy of Funding Destructive Embryonic Stem Cell Research

The following article is composed of excerpts from
the official Press Release

AI Sanctity of Life LogoWASHINGTON, DC (June 25, 2010).  Today the United States Court of Appeals for the District of Columbia (per Ginsburg, Brown & Kavanaugh, JJ.) issued its decision 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 controversial guidelines for public funding of destructive human embryo stem cell research that the National Institutes of Health issued on July 7, 2009.  The implementation of these guidelines marks the first time that U.S. taxpayer dollars will be used to fund research that will result in the destruction of living human embryos.
 Dc Court of Appeals seal
  The plaintiffs contend that the NIH guidelines violate the congressional ban on federal funding for such such research 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 completely lawful, more effective and less ethically problematic forms of adult and induced pluripotent stem cell research that do not require the destruction of living human embryos.


Case Background
President Obama, in his March 11, 2009 Executive Order, stated he was determined to fund ethically "responsible, scientifically worthy human stem cell research...to the extent permitted by law." Sadly these guidelines, while claiming to "implement' the President's directions, fail his own test because they are not only unlawful, they are based upon an ethically irresponsible misunderstanding of available scientific evidence.  One of the expert stem cell researcher plaintiffs, Dr. James L. Sherley (see sidebar), explained that "the great irony of the guidelines is that research involving stem cells safely derived from human adults and other sources presents the same if not greater potential for medical breakthroughs, without any of the troubling legal and ethical issues related to embryonic stem-cell research."  Clinical trials using adult stem cells have successfully reversed the effects of diseases such as lupus, multiple sclerosis, and rheumatoid arthritis. 

On August 19, 2009, Advocates International, along with its co-counsel Gibson, Dun & Crutcher and the Alliance Defense Fund, filed their federal court complaint challenging these guidelines on behalf of a broad coalition of plaintiffs, including Dr. James L. Sherley, a former member of the MIT faculty, currently working as a senior scientist at the Boston Biomedical Research Institute; Dr. Theresa Deisher, the founder, managing member, and research and development director of AVM Biotechnology; Nightlight Christian Adoptions, a non-profit, licensed adoption agency dedicated to protecting and finding adoptive parents for human embryos conceived through in vitro fertilization; all individual human embryos whose lives are now at risk under NIH's guidelines; parents seeking to adopt human embryos; and the Christian Medical Association, a non-profit association of doctors dedicated to improving ethical standards of health care in the United States and abroad.  Plaintiffs are arguing that the NIH Guidelines violate existing federal law banning the use of federal funds for the destruction of human embryos.  The plaintiffs also argue that because NIH promulgated its guidelines with a preconceived determination to fund human embryonic stem cell research and without considering these scientifically and ethically superior alternatives, the guidelines are invalid regulations that violate the federal Administrative Procedure Act and, therefore, should be struck down.


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