The DC Circuit Revives a Legal Challenge to Human Embryonic Stem Cell Research – What Does It Mean?

On June 25, 2010, the federal Court of Appeals for the District of Columbia Circuit  (the DC Circuit) released an opinion reversing a district court opinion that had dismissed a legal challenge to President Obama’s expansion of federal funding for human embryonic stem cell (hESC) research on the ground that none of the plaintiffs had necessary standing for the challenge.  Link.  What does, and doesn’t, this mean?

This post grew out of an email answer I sent to a question from a science journalist and it seemed to me it might be useful to post it on this blog, more for non-lawyers than for lawyers.

First, this isn’t a case of the DC Circuit striking down hESC research.  The opinion, written by Judge (not Justice) Ginsburg and joined by Judges Brown and Kavanaugh, is very much an “inside baseball” kind of legal decision.  U.S. federal courts are only allowed by the Constitution to hear cases that deal with real “cases or controversies.”  This has evolved, over the centuries, into a doctrine called “standing,” which says that courts won’t hear cases unless the people bringing the suit have some tangible interest in the outcome.  I can’t sue to stop the President from spending money for a war in Afghanistan because his spending money in Afghanistan doesn’t affect me (very much).  Yes, some of it may be my tax dollars, but that’s not a strong enough connection to enable me to sue. Note that this focuses on tangible harms.  The fact that I might be a pacifist, who deeply believes that war is immoral, or just someone who deeply feels this war is wrong (I’m neither, by the way) is irrelevant.  A plaintiff may care very, very deeply and may feel greatly injured as a result of the action complained of without having standing.  (There’s a non-constitutional version of standing, too, called “prudential standing,” that applies to complaints, like this one, under the Administration Procedures Act.  I won’t bother with that complication here – the DC Circuit panel didn’t spend much time on it.)

The doctrine of standing has become more and more complicated over the last few decades as courts (I suspect in part for political reasons, in part to decrease their dockets, and in part because of the internal logic of the doctrine) have used it more frequently get rid of cases without having to hold a trial or to have to take a position on the merits.  I’m not an expert on standing, but my sense is that it has become so complicated as to make the results of a standing challenge, at least at the edges, unpredictable.

Defendants love to win cases on standing. A motion to dismiss for lack of standing can come at the very beginning of a case, before almost any money is spent.   That means that they don’t have to spend time and money preparing for a trial and that their risk of losing goes to zero.

In this case, the plaintiffs included various Christian groups, suing for themselves as well as on behalf of all embryos, and two researchers, James Sherley and Theresa Deisher, who specialize in adult stem cell research, which does not use embryos.  The lower court found that none of them had standing – the Christian groups did not have a tangible injury and the embryos weren’t persons and so couldn’t sue no matter what.  As to the two researchers, the trial court they did not have “competitor standing” for various reasons.

The appeals court didn’t reverse as to the Christian groups, for themselves or for the embryos – it concluded the plaintiffs had given up those arguments.  It did reverse as to the two researchers.  (Somewhat oddly, the opinion consistently refers to those plaintiffs as “the Doctors,” which seems, to me, to imply that they were physicians.  Dr. Sherley has both an MD and a PhD, though he is suing as a researcher, not as a clinician; Dr. Deisher has only a Ph.D.) Their claim, that the increase in competition from newly fundable hESC researchers would decrease their chances of getting funding and, perhaps more importantly, would require them to work harder on their grant applications, was the kind of tangible injury that confers standing, according to the court.

I don’t know enough about the intricacies of the standing doctrine as applied in the DC Circuit (the court that governs federal appellate cases in DC, including a lot of administrative law cases) to know whether this decision about standing is technically “right” or not.  It looks well supported and seems plausible, but the same is true of the quoted portions of the district court opinion.  The three judges involved are a Reagan appointee (who wrote the opinion) and two George W. Bush appointees, but that doesn’t necessarily mean their responses are political.  And the writing judge, Judge Ginsburg, is known as more of a libertarian than a social conservative – I doubt that he is personally very sympathetic to the pro-embryo position.

The result is that the case goes back to the district court, where the two scientists can try to make their case that the new policy violates the Dickey-Wicker amendment, forbidding federal funding for research that harms or destroys embryos. Both the Clinton Administration and, implicitly, the Bush Administration took the position that the feds could fund research with stem cells that had been formed by the destruction of embryos without federal money . . . i.e., the feds didn’t pay for the harming or destroying of the embryos, they just paid for research with the products of that destruction.  Although that position ignores the idea that this makes the federal government, and arguably federal taxpayers, complicit in the destruction of embryos, it argument has always seemed to me to be a legal winner, particularly as two (very different) Administrations have accepted it and Congress, which readopts the Dickey-Wicker amendment every year, hasn’t changed the amendment to overcome that interpretation.  (Note that a victory for the plaintiffs on the ground that the Obama policy violates Dickey-Wicker would almost certainly rule out any NIH funding for hESC research, even under the older Bush policy.)

But if you are the defendants, or a pro-hESC research person (like me), this does add another risk. Now a court will have to decide the issue, instead of just saying that no one has the standing to bring it up.  The court should, I think, easily rule for the government, but there is no absolute certainty in law.

The defendants (HHS) could ask this three judge panel to reconsider its decision, could ask the whole DC Circuit to review this decision (all 9 members), or could appeal to the Supreme Court.  Or it could just go back to the district court and try to win its apparently eminently winnable case there.  All those responses seem to me plausible – I don’t know what they’ll do.

To sum up, this is a procedural decision that appears (to this law professor who is not an expert on standing) legally plausible.  It does not go, at all, to the substantive issue of whether the new guidelines do violate the Dickey-Wicker amendment.  It just allows a lawsuit making that claim to go forward.  I think it is highly likely (though one can never be certain) that the courts will rule that they do not, but this does add some risk.  Of course, even if somehow the plaintiffs did win, Congress could still change Dickey-Wicker to make it clear that this is legal.

Is this a blatantly anti-stem cell decision?  No.  Is it even a subtly anti-stem cell decision?  I can’t be sure, but I suspect not.  Is it a decision that increases the risks that federal funding of hESC research will be held illegal?  Yes, but only a little bit, I think.  As someone who supports expanded hESC research, I am not worried by this result, but am a little annoyed . . . now the government will have to go back and do again something we thought was out of the way.

The key action now, assuming no further appeals, will be the trial court’s ruling on what will be a motion for a preliminary injunction.  If granted, that would stop the new policy while the court decides whether it is legal or not.  But the motion should only be granted if the side asking for it is likely to win on the merits.  I doubt very seriously that a preliminary injunction will be issued here, but that will probably (assuming no further appeals) be the next step.

There is a deeper issue here – and I’m not enough of an expert on the NIH to know how big a deal this is.  This decision seems to let any researcher in a field who ends up with more competition for NIH grants as a result of a change in NIH guidelines or policies sue, alleging the policies are illegal.  I just don’t know whether that has happened in the past.  I can see where such suits could be annoying to NIH. As a practical matter, I don’t think that’s likely to happen very often, because the NIH generally has huge discretion in how it spends money . . . a restriction like Dickey-Wicker is unusual.  And any researcher feeling an allegedly greater competitive impact would need money for the suit, something universities aren’t likely to pony up (particularly when along with spending scarce money, researcher or universities might fear that suing would annoy the NIH to the long term cost of the researcher and the university).  Here you’ve got an external, decently funded political interest group backing the suit; that probably won’t happen much.

– Hank Greely