Stem-cell decision is no threat to federal science funding

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As counsel for the researcher plaintiffs in the lawsuit against the US National Institutes of Health (NIH) on experiments using human embryonic stem cells, I write to correct your assertion that the progress of the suit poses a threat to “the very framework of federal funding for science” (Nature 466, 159; 2010).

As the US District Court for the District of Columbia held on 23 August (, federal funding for embryonic stem-cell research violates Congress's prohibition against federal funding for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death”.

In its decision in June that the researcher plaintiffs had sufficient standing to challenge the NIH guidelines for human embryonic stem-cell research, the Court of Appeals did not suggest that researchers are “legally entitled to a certain portion of the funding pie” or “that changes in a federal agency's research priorities ... open the agency up to lawsuits”.

Instead, the court faithfully applied a long line of cases, stretching back to the early 1970s. These consistently held that participants in regulated markets suffer injury when illegal changes in the regulatory scheme alter the competitive landscape — in this case, the increased competition for funding to support research on adult (as opposed to embryonic) stem cells. None of those cases invited runaway litigation against federal agencies, and the court in this case extended no such invitation.

What's more, the NIH deemed as “unresponsive to the issues at hand” many of the comments it received on its draft guidelines, which were opposed to the federal funding of human embryonic stem-cell research (see Under Congress's directions in the Administrative Procedure Act, an agency must consider relevant comments when promulgating a new rule.

If the researcher plaintiffs had been denied their day in court, no party would have had standing to rectify these injustices. Your readers might then have had a reason to be concerned about a possible threat to the federal funding of science.

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  1. Advocates International, 9691 Main Street, Suite D, Fairfax, Virginia 22031, USA

    • Samuel B. Casey

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  1. Report this comment #13288

    Gordon Cash said:

    Now let me see if I understand this. Some Christian fundamentalists, who apparently actually believe that preserving blobs of undifferentiated cells is more important than the well-being and lives of actual, walking, talking, thinking, feeling human beings, found a lawyer and a couple of scientists of like mind. Then, the lawyer found a way to bring a major NIH research initiative to a standstill because it conflicted with said fundamentalists' religious opinions, but without actually having to state that reason in court. How unspeakably clever. Well, no one can accuse Mr. Casey of not earning his fees.

    I reluctantly concur with both the title and the substance of Mr. Casey's correspondence here. The decision does not threaten federal science funding. Allowing research agendas to be dictated by religious fundamentalists threatens the very enterprise of federally funded science itself. I heartily concur with the lead editorial in this issue of Nature. The only remedy for this situation is prompt action by Congress. I shall write to my Representative and Senators without delay.

  2. Report this comment #14970

    Jeremy Green said:

    The sly legal trick in this letter is the conflation of peer review with a market and the implication that acceptance of any novel kind of science as a change in the regulatory scheme. Funding of embryonic stem cell science simply does not constitute a "change in the regulatory scheme" nor does it "change the competitive landscape" - only the traffic upon that landscape. Therefore, the plaintiffs have no standing and the comments in the Nature editorial still stand.

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