Human embryonic stem cells hold promise for new medical therapies, and the Obama administration has attempted to lift restrictions on the public funding of the research that were put in place by the preceding president. That attempt was put on hold when some researchers who focus on adult stem cells filed suit, claiming that their funding prospects were harmed by the change in policy. After an initial success with a District Court, an Appeals Court left the suit with little chance of ultimately succeeding. Now, the trial judge has (perhaps grudgingly) responded to the Appeals Court's ruling and issued summary judgment on behalf of the National Institutes of Health, endorsing the legality of its decision to allow funding to flow to stem cell research.

The legal wrangling of the case hinged on two issues: the definition of "research," and whether scientists suffer harm based on funding policy decisions. The plaintiffs in the case were researchers who focused on adult stem cells and had seen their NIH grant proposals undergo competitive evaluations, pitted against those from scientists working on embryonic stem cells. With the restrictions on embryonic stem cells lifted, that competition would increase. Thus, they claimed to have suffered harm from the policy change, which gave them grounds to sue. That decision, which may make any funding policy change the subject of future lawsuits, has remained intact in this final ruling.

Which leaves us with research. The law governing stem cell research prohibits funding "research in which a human embryo" is subject to harm. The judge in this case, Royce C. Lamberth, read "research" very broadly, in a manner that would encompass all the preparatory work, including the isolation of stem cells. In contrast, the NIH read the term narrowly, as applying only to the work it was providing funding to.

The NIH's reading won in the Appeals Court, which sent the case back to Judge Lamberth, who seemed somewhat annoyed by it all. "While it may be true that by following the Court of Appeals’ conclusion as to the ambiguity of 'research,' this Court has become a grudging partner in a bout of 'linguistic jujitsu,'" he wrote, quoting the plaintiffs. "Such is life for an antepenultimate court." Elsewhere, referring to the language of the statute, he quipped, "The awkward passive construction Congress chose appears tailor-made to accommodate the preposition 'in' and the restrictions that it brings, as it was certainly not chosen for its literary merit."

Nevertheless, Lamberth followed the Appeals Court's reasoning and, as the plaintiffs didn't offer any arguments that weren't available during the appeal, concluded that the NIH had interpreted the statue reasonably in formulating its policy. In addition, he has ruled that the process of formulating the policy was done according to the law. The plaintiffs argued that the NIH ignored public comments indicating that the research shouldn't be funded at all. Lamberth notes, however, that the agency was already funding human embryonic stem cell work, and received an executive order from the White House ordering it to eliminate some of the restrictions on this work. As such, comments that suggested it stop all funding of the work were irrelevant, since they essentially suggested that the NIH illegally ignore a presidential order.

Although the plaintiffs may consider an appeal, there seems to be little ground for one that the Appeals Court hasn't already trodden upon. Thus, this case has probably neared the end of its life. Nevertheless, it has set a significant precedent in the District Court of Columbia, in that scientists have been granted grounds to sue for policies that put their research at a funding disadvantage. I expect that others will eventually seek to take advantage of that precedent.