Justice Department lawyers are preparing to ask a federal judge to put a hold on his ruling this week that blocks awarding further federal grants for stem-cell research.
The federal government intends to appeal the ruling by U.S. District Court Judge Royce Lamberth. But an administration official says government lawyers will also argue that the injunction imposed by the judge will seriously jeopardize ongoing stem-cell research. Justice Department lawyers are now gathering affidavits to support that claim, the official says.
Groups opposed to research on stem cells obtained from human embryos have praised the judge's order. Americans United for Life called it a sensible ruling -- one that "reconfirms what we already knew, that administration policy is in violation of the law."
But some legal scholars are questioning Judge Lamberth's conclusion that the Obama administration's policy violates a federal law, one that says no federal funds can be used for research "in which" human embryos are destroyed. Because obtaining the stem cells destroys embryos, the judge said, it follows that subsequent research "is clearly research in which an embryo is destroyed."
But an expert on health-care law argues that the congressional ban does not prohibit federal funding of research that is "related to, associated with, has a connection to, or builds upon the fruits of" embryo destruction.
"It only prohibits funding of research in which embryos are destroyed," says UCLA Professor Russell Korobkin.
Because the law at issue is tacked onto congressional appropriations bills, he says, "the reasonable interpretation of the scope of the research in question is to follow the money in the grant request. If the grant application seeks money for an activity that directly results in embryo destruction, this proposal constitutes research "in which" the embryo is destroyed."
But writing on the legal blog of fellow UCLA law professor Eugene Volokh, Korobkin said if an applicant seeks money to study an existing stem-cell line, the research in question is not research "in which" the embryo is destroyed.