A three-judge panel in a federal appeals court on Monday heard testimony in a case to determine whether the federal government can fund embryonic stem cell studies, the Wall Street Journal reports (Yadron, Wall Street Journal, 12/6).

The judges are reviewing a decision by U.S. District Court Judge Royce Lamberth, who on Aug. 23 issued a preliminary injunction blocking funding for stem cell research allowed under President Obama's stem cell research guidelines. Lamberth ruled that the policy violates a 1996 law known as the Dickey-Wicker Amendment, which prohibits expending federal funds for "research in which a human embryo or embryos are destroyed" (Women's Health Policy Report, 9/28). Funding for stem cell research has been allowed to continue while the case is being appealed.

Plaintiffs' attorney Thomas Hunger, representing the two scientists who filed the original suit in August 2009, told the judges that federal grants for such research must be stopped because they violate the law by inducing the private sector to create more cells (Wall Street Journal, 12/6).

Beth Brinkmann, a lawyer for the Department of Justice, countered that the spending is legal because the government is not paying for the destruction of embryos (Bloomberg/Boston Globe, 12/7). She added that Congress intended to make the distinction between promoting the study of stem cells and paying for their creation.

Judges' Questions

Judge Thomas Griffith said that the federal government's argument "rises or falls" on whether such research is connected with deriving stem cells. The judge repeatedly asked Brinkmann about whether federal funding encourages the destruction of embryos.

The judges also questioned Hunger on whether the federal government was breaking the law. Judge Douglas Ginsburg said, "There's research into making laboratory equipment. And then there's research into using laboratory equipment" (Wall Street Journal, 12/6).

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