By Don C. Reed

 As you know, a lawsuit was recently filed to block our country’s national stem cell program, to deny federal funding for embryonic stem cell research.  

 Yesterday, September 14, America responded to that lawsuit.

 A motion was just filed to dismiss the case of James L. Sherley, et al, versus Kathleen Sebelius, et al. If the judge in charge agrees with the motion, the lawsuit is gone.

 The request for dismissal is 67 pages long, and I have only read it twice. But first impressions are that it is solid.  

 Personally, I intend to hope for the best, and plan for the worst: to stay informed.

 Here are a few scattered quotes* from the request for dismissal:

 (regarding plaintiffs’ claim that the Guidelines are contrary to law, as per the Dickey Wicker Amendment) “In the Guidelines, NIH explained that, consistent with the definition of “embryo” in the Amendment, stem cells are not embryos.” (emphasis added-dr)

 “…The plaintiffs…(who are suing to block the research on grounds that they suffered irreparable damage by the new stem cell Guidelines) are unable to allege any concrete injury that any of them has suffered or would suffer from the issuance of the Guidelines, relying instead on speculative predictions of potential indirect effects…on the behavior of third parties…”

 “…public funding of (human embryonic) stem cell research was first authorized by President Bush in 2001, has been occurring now for almost a decade….”

 “…(Plaintiff) is foreclosed by existing case law from raising the rights of the class of embryos that it seeks to represent, as “embryos” do not have enforceable rights as “persons” under the law…”

 (regarding the alleged preference for embryonic over adult stem cell research) “..NIH remains committed to the funding of adult stem cell research at a very high level. NIH estimates that funding for non-embryonic stem cell research will continue to increase through 2010 to approximately $311 million, over three times that of the projected total for hESC funding…”

 “Ultimately, plaintiffs (adult stem cell researchers) Sherley and Deisher ask this court to grant them standing based on their desire for a partial economic monopoly (emphasis added—dr) over competition for federal funding of stem cell research…”

 “Had Congress intended to prohibit all funding for research involving hESCs… it could have done so expressly…”

 “If the term “research” must be read to include all acts that necessarily preceded the hESC rsearch project for which federal funding is sought, or research that might ultimately flow from the project, then it is hard to see where the dividing line might be. Science is a continuum, where past advances in cell biology made derivation of stem cells possible, and where new advances might alter those techniques.  The plaintiffs’ broad reading of the term “research” in the Dickey-Wicker Amendment suggests that all such research should therefore also be prohibited, a result that should not be entertained by this court.”

 “Congress has expressly interpreted Dickey-Wicker to permit federal funding for stem cell research that is “dependent upon” the destruction of embryos…. (“The Committee continues a provision to prohibit the use of funds… concerning research involving human embryos. However, this language should not be construed to limit federal support for research involving human embryonic stem cells…”

 “…There are a multitude of parties who would be substantially injured if the Guidelines were to be enjoined. Millions of people suffer from serious ailments, such as Alzheimer’s disease, Parkinson’s disease, and type 1 diabetes, for whom hESC research holds out the promise of treatment. These people have waited years for federal restrictions to be lifted for research into potentially life-sustaining treatment….”

 “There is a strong public interest that “artificial limitations on scientific inquiry” be removed, in order “to enhance the contribution of America’s scientists to important new discoveries and new therapies for the benefit of humankind….”

 “Defendants respectfully move to dismiss the plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure 12(b)1 and 12(b)6….

 “Respectfully submitted,

Tony West, Assistant Attorney General,

Channing D. Phillips, Acting United States Attorney,

Sheila M. Lieber, IL Bar No. 1567038, Deputy Director…

United States Department of Justice, Civil Division, Federal Programs Branch

 We do not know the outcome yet. Merely because our side has presented a strong case for dismissal does not mean we are going to win.

 But for me, what sums up our side up best was an email I received from a friend.

 Kavitha B. has a son, Pranav, with Spinal Muscular Atrophy. SMA is a condition generally fatal before the child turns three. Pranav is four. Every time he has a cold, his mom sits in a chair beside his bed all night, literally fighting for her son’s life, trying to keep him alive.

 This mother of a suffering child was angered that blastocysts are called (in the lawsuit) “minor persons”, with rights taking precedence over real-world children needing cure.

 She said: “”They (the plaintiffs) are all welcome to come to my house and see for themselves, and compare those “minor persons” lives to that of my child. They should live in his shoes (or rather lie in his bed because that is what he does all day as he is paralyzed) and then talk about the rights of blastocysts…”

 But the truth is on our side. As Christopher Reeve always said, we will “go forward”, despite all obstacles.

 And we will prevail.

 *all quotes from: Case 1:09-cv-01575-RCL Document 22-2  Filed 09/14/2009

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