In a previous post I commented on Judge Lamberth’s flawed decision in the stem cell funding case brought by two religiously and politically, but not scientifically or ethically, motivated “researchers.” The two Congressional Research Service reports referenced there can provide the reader with the necessary background information.
On September 29, 2010, the Court of Appeals for the District of Columbia Circuit extended their previous order of September 9 to allow continued funding of stem cell research pending their appellate decision on the above suit. The harm caused by an interruption of funding has been discussed elsewhere. The fact that more than human embryonic stem cell research was involved has also been noted. A survey of US stem cell scientists shows that uncertainty following the legal challenge to current hESC research policy has negative scientific and economic impacts internationally. It is interesting to note that one plaintiff’s own institution joined in an amicus curiae brief against him.
In a thorough and informative legal roundtable on this stem cell issue published in Nature, Professor A. Charo states, “Read literally and in absence of any clarification, the prohibition on funding effectively bars funding for any human embryonic stem cell research, including research using lines approved by President Bush’s administration.
Taylor adds,” For all of its [Dickey-Wicker Amendment] apparent power, this language is not some sort of self-perpetuating stem cell; it is a differentiated and fragile creation, kept alive through regular re-infusions from the peculiar life blood of politics.”
On April 29, 2011, the U.S. Court of Appeals for the District of Columbia, with Judge Douglas Ginsburg—an appointee of Reagan--writing for the majority, stated: “We conclude the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used. We therefore vacate the preliminary injunction.”
In their analysis of the court’s decision Cohen and Adashi note: “In overruling the lower court decision, the appeals court agreed [Congress, however, has not written the statute that way.], following well established principles of U.S. administrative law (the so-called Chevron doctrine) that if Congress has ‘directly spoken to the precise question at issue,' then the court ‘must give effect to the unambiguously expressed intent of Congress,' but if instead the ‘statute is silent or ambiguous with respect to the specific issue,’ then the court will ‘defer to the administering agency’s interpretation as long as it reflects a permissible construction of the statute.’” They also discuss the Harriet Rabb, general counsel of the DHHS, opinion of January 15, 1999.
In his Perspective, Annas opines, “it is reasonable to conclude that for all practical purposes the legal challenge to the NIH Guidelines is over,” and “the forum for future debates will shift back to the U.S. Congress, where the Constitution says matters of federal spending belong.”
In a previous post I had made my latest comment on the suits contesting PPACA and, especially, the individual mandate. However, on 29 June 2011, the U.S. Court of Appeals for the Sixth Circuit ruled: “Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce. Furthermore, Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance. Finally, the provision regulates active participation in the health care market, and in any case, the Constitution imposes no categorical bar on regulating inactivity. Thus the minimum coverage provision is a valid exercise of Congress’s authority under the Commerce Clause, and the decision of the district court [U.S. District Court for the Eastern District of Michigan; George C. Steeh, District Judge] is AFFIRMED.”
The 6th Circuit is the first of three appeals panels expected to issue rulings in the next few months. For readers wanting more information, a new policy brief from Health Affairs and Robert Wood Johnson Foundation examines the status of several lawsuits challenging the constitutionality of various aspects of the Affordable Care Act. We shall continue to follow these developments.