Dates, Judges Set in Appeal of Stem Cell Suit

A law suit threatening to block government-funded research on human embryonic stem cells (hESCs) is moving forward in a federal appeals court. And the makeup of the three-judge panel assigned to the case suggests that a win by the National Institutes of Health (NIH) is less certain than some observers had hoped.

Sherley v. Sebelius was filed in 2009 by two researchers who claim that NIH guidelines easing restrictions on hESC research are illegal. In August 2010, a district court judge agreed and briefly blocked NIH funding for hESC research. The U.S. Court of Appeals for the D.C. Circuit later overturned that preliminary injunction, and the district court dismissed the case in July. The plaintiffs are now appealing.

Briefs are due between January and mid-March and oral argument has been set for 23 April at 9:30 a.m. One of the three judges, Karen LeCraft Henderson, appointed by George H. W. Bush, was the dissenter on a 2-1 opinion in April that favored NIH. The two others are also conservatives—Chief Judge David Sentelle, appointed by Ronald Reagan; and Janice Rogers Brown, appointed by George W. Bush.

"It's a very difficult draw for us," says Tony Mazzaschi of the Association of American Medical Colleges in Washington, D.C., which supports NIH's position. He expects that the court could rule in fall 2012.