Academic journal article Harvard Law Review , Vol. 125, No. 2
CIVIL LAW--FEDERAL FUNDING OF HUMAN EMBRYONIC STEM CELL RESEARCH--D.C. CIRCUIT VACATES DISTRICT COURT'S PRELIMINARY INJUNCTION OF FEDERAL FUNDING FOR RESEARCH USING HUMAN EMBRYONIC STEM CELLS.--Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).
Congress frequently attaches policy riders to appropriations legislation. This controversial practice has drawn scholarly and judicial criticism as suboptimal policymaking. (1) Congress enacted one such rider, the DickeyWicker Amendment, (2) in 1996 to prohibit the federal government from funding research that destroys human embryos, prompting a multidecade effort by administrations of both parties to cabin the rider's potentially broad impact and continue certain types of medical research. Recently, in Sherley v. Sebelius, (3) the D.C. Circuit vacated a preliminary injunction that would have prevented the federal government from funding research involving human embryonic stem cells (hESCs) under Dickey-Wicker. (4) The court deferred to the federal agency's restrictive interpretation of "research" and supported its conclusion by noting that Congress's annual reenactment of the policy rider implied congressional acquiescence in the agency's interpretation. (5) By relying on the bare fact of reenactment, the court misapplied binding precedent and discounted compelling characteristics of policy riders that counsel against such a rote approach.
Prompted by fears of future scientific research on human embryos, (6) Congress enacted the Dickey-Wicker Amendment as a policy rider in the 1996 omnibus appropriation bill, providing in relevant part that "[n]one of the funds made available by [the appropriation] may be used for ... research in which a human embryo or embryos are destroyed." (7) Congress has reenacted Dickey-Wicker in each successive appropriation without substantive change. (8)
Scientists first derived hESCs from human embryos using private funds in late 1998, (9) and the Department of Health and Human Services (HHS) informed the National Institutes of Health (NIH) in early 1999 that Dickey-Wicker's "prohibition on the use of funds ... for human embryo research would not apply to research utilizing [hESCs] because such cells are not a human embryo." (10) President George W. Bush similarly permitted funding for then-extant hESC lines created by researchers using private funds, (11) and under instruction from President Barack Obama, (12) the NIH adopted new guidelines in 2009 through rulemaking that expanded the set of hESC lines qualifying for federal research funding. (13)
Researchers of adult stem cells Dr. James Sherley and Dr. Theresa Deisher sought to enjoin the NIH from funding any research involving hESCs under the new guidelines. (14) The district court granted the researchers' motion for a preliminary injunction, ruling, inter alia, that the plaintiffs had a substantial likelihood of success on the merits (15) because Congress's unambiguous use of the broad term "research" in Dickey-Wicker clearly "encompasses all 'research in which' an embryo is destroyed, not just the 'piece of research' in which the embryo is destroyed." (16) The court engaged in the traditional twostep Chevron analysis, in which courts ask at Step One "whether Congress has directly spoken to the precise question at issue" (17) and defer at Step Two to "reasonable" agency interpretations of ambiguous statutes. (18) Because hESC research "necessarily depends" on derivation of hESCs from a human embryo and destruction of that embryo, the court reasoned, it "is clearly research in which an embryo is destroyed." (19) The court concluded at Step One that Dickey-Wicker "spoke to the precise question at issue" and thereby foreclosed the possibility of deference at Step Two. (20)
The D.C. Circuit vacated the preliminary injunction. (21) Writing for the panel, Judge Ginsburg (22) held that the plaintiffs were "unlikely to prevail" on the merits because the NIH's narrow interpretation of "research" merited deference under Chevron. …