Yesterday, Judge Royce Lamberth denied the Justice Department’s request to stay his order suspending federal funding for embroynic stem cell research, which is a ruling that shouldn’t surprise anyone. Before a judge may stay a decision, they must first conclude that the party has “made a strong showing that they are likely to succeed on the merits.” So, if Judge Lamberth had stayed his own decision he would have to more or less concede that his reasoning is open to a strong attack.
There is a thin ray of light in Lamberth’s order denying the stay, however:
Defendants are incorrect about much of their “parade of horribles” that will supposedly result from this Court’s preliminary injunction.
Plaintiffs agree that this Court’s order does not even address the Bush administration guidelines, or whether NIH could return to those guidelines. (Defs.’ Opp’n 5.) The prior guidelines, of course, allowed research only on existing stem cell lines, foreclosing additional destruction of embryos.
Plaintiffs also agree that projects previously awarded and funded are not affected by this Court’s order.
Essentially, the judge appears to embrace a concession by the plaintiffs challenging stem cell research that his order does not affect money that has already been distributed to scientists — it only prevents the government from making new awards. While this limit on his order is cold comfort to scientists whose entire body of research could be rendered useless if they aren’t allowed to continue building on it with new grant money — or, for that matter, to the millions of people with illnesses who could be cured by stem cell research — it does remove the immediate threat of scientists being forced to return money they have already spent.
Additionally, the judge also seems to endorse the view that his order does not prevent the Obama Administration from moving back to the Bush-era policy on stem cells — a policy which allowed research on existing stem cell lines but would not allow new lines to be created. As I wrote on the day that Judge Lamberth suspended stem cell funding, the judge’s reasoning still appears to prevent restoration of Bush-endorsed projects. Nevertheless, if Judge Lamberth limits the scope of his order that will, at least, require opponents of embryonic stem cell research to file another lawsuit before they can suspend research that is not specifically forbidden by Lamberth’s order.
Now that Lamberth has denied a stay of his previous decision, that denial can be appealed to the D.C. Circuit. Hopefully, that court will embrace the same view that was shared by the Clinton, Bush and Obama Administrations, that Congress never intended to prevent stem cell research from moving forward.