On appeal last August, the D.C. Circuit Court agreed with the HHS and decided that the new policy did not violate an amendment to a federal appropriations bill that strictly prohibited federal funding “for research in which a human embryo or embryos are destroyed.” The appeals court ruled that HHS could legally sponsor research on embryonic stem-cell lines as long as the stem cells already existed and the federal money wasn't used in the process of isolating them from the embryo.
The circuit court sent the case back to the district court with orders to obey that legal reasoning, which it did in a summary judgment in favor of HHS. On Friday, the three-member appeals court validated the district's court's judgment in a 27-page ruling (PDF) that included two separate concurring opinions.
“If this was ever a simple case, it long ago ceased to be one,” U.S. Circuit Judge Janice Rogers Brown wrote in her concurrence. “Disagreement is inevitable when what lies at the core of the dispute is a profound question about the boundaries of science—one that is irreducibly controversial because the slippery slope is precipitous in both directions.”
The majority ruled that the plaintiffs had raised no issue that could overturn the complex legal analysis that led to the district court's summary judgment—which was based on the appeals court's August 2011 decision that federally funded “research” could be conducted as long as it didn't pay for physically extracting cells from embryos.
U.S. Circuit Judge Karen Henderson wrote in her separate opinion Friday that although she felt the 2011 decision was wrong because it “ignored the amendment's plain meaning, manufacturing ambiguity where there was none,” the court remained “bound” to its previous majority ruling as a matter of law.
Attorneys for the plaintiffs could not be immediately reached for comment Friday.