Sherley continues arguing against stem cell research in court

Sherley continues arguing against stem cell research in court

James L. Sherley, the former Course 20 MIT professor trying to stop government funding of embryonic stem cell research, had his day in court yesterday — again. This was his third time before the appeals court.

Sherley is now appealing on the merits of his case, after a complex sequence of court events. The D.C. district court found preliminarily in his favor, but the government appealed and the appeals court found against him on the preliminary injunction. Then the district court, respecting the appeals court’s decision, ultimately found against Sherley.

Both sides argued yesterday before a three-judge panel, which included Chief Judge David B. Sentelle. According to coverage by Science and Nature, Sentelle asked most of the questions in the oral argument.

Sentelle, joined by Judge Janice R. Brown, strongly focused on the question of whether the appeals court was bound by its earlier decision on the preliminary injunction (against Sherley).

Yesterday’s three-judge panel was a different panel from the one that decided the earlier question, although it had one member in common, Karen L. Henderson. Henderson did not speak during yesterday’s oral argument. In the earlier decision, she dissented from the appeal’s court decision and voted in favor of Sherley, calling the government’s argument “linguistic jujitsu.”

Brown also asked questions about Congress’ intentions. Congress passed the appropriations amendment barring government funding of research that harms embryos using the same language, over and over. Sherley alleges that amendment bars embryonic stem cell research, but the government disagrees.

The appeals court is not expected to rule for several months. Sherley’s attorneys have expressed the intention to take the case all the way to the Supreme Court.

—John A. Hawkinson

Paul almost 6 years ago

This is pretty stressful for the stem cell community...I'm doing a poll on my lab's blog about how people think the judges will vote. Please weigh in in the poll on how you think the judges will (not should) vote. The voting so far looks surprising.


Alan Poganski almost 6 years ago

I have to question the integrity of Sherley from what I found out about his research has been found to lack the merit of federal funding. It's troubling that some 'researchers' like Sherley have to resort to the courts to extort funding for their research.

BTW I am no researcher but a stroke survivor that has lost half of his eyesight and now it looks like any therapys will take longer to develop if the courts continue pandering to this person. I thought the courts made a decision! Why is this frivolous lawsuit even being heard again? Delays like this will cause people to die needlessly from these legal delays.

John A. Hawkinson almost 6 years ago

Alan: It's a fundamental tenet of our legal system that decisions made in that system are subject to appeal. Not interminable and unlimited appeals, but measured appeals through a process. It's pretty important to recognize that our legal system is not perfect, and appeals are one of the ways that that imperfection is managed.

Generally a district court ruling is appealable to the circuit court, and a circuit court ruling is appealable to the Supreme Court. At each level, the winning appeal is less and less likely. And the Supreme Court gets to choose which cases to hear, and the chances of a single case being selected by the Court are not high.

In the case of Sherley v. Sebelius, it seems like there are more rounds of appeal than are typical, and that's for technical legal reasons. In particular, because the district court chose to issue a preliminary injunction before finally deciding the case, that preliminary injunction was appealable (and was appealed by the Government when it favored Sherley).

While there is certainly some uncertainty over federal stem cell funding as long as the case continues, nonetheless the NIH is fully able to (and is) fund human embryonic stem cell research at this time.