Embryonic Stem Cell Injunction (Part II)

Tuesday, August 24, 2010 at 2:01 AM Bookmark and Share
More of my thoughts (part I is here) on the recent ruling by judge Royce Lamberth halting embryonic stem cell research in the U.S. Here are my thoughts on the judges decision to go forward with the injunction.  In his ruling he lays out the criteria for the decision and why he thinks the plaintiffs case was sufficient to pull federal research funding.   

Part II: Did the judge meet the criteria for an injunction?

In his ruling, the judge lays out criteria for issuing an injunction by quoting from another case which asserts that (emphasis mine)...
[An injunction] should be granted only when the party seeking the relief... carries the burden of persuasion... A party carries this burden of persuasion by establishing: (1) that there is a substantial likelihood of success on the merits; (2) that the plaintiff would suffer irreparable injury absent an injunction; (3) that an injunction would not substantially injure other interested parties; and (4) that an injunction would further public interest.
Criteria (2) and (3) seem like a hard sell in this case. Cutting off research funding is a HUGE deal, and it's hardly obvioius how these plaintiffs are suffering irreparable injury without the injunction. Regarding (4), it's also far from clear this injunction furthers "public interest." And what about prolonging the discovery of new medical treatments that may result from ESC research? How is this in the public interest? Lets see what the judge has to say about meeting these criteria.

(2) Irreparable injury to the plaintiffs?

The argument for this second criteria is almost hilarious it's so wrong.  The judge bought into the idea that some of the plaintiffs would suffer irreparable injury without the injunction because ESC researchers outcompete them for funding...
Plaintiffs are researchers who work exclusively with ASCs. They seek funds for their research projects from defendants and allege “that obtaining NIH funding is necessary for their continued research.” ... The Guidelines, by allowing federal funding of ESC research, increases competition for NIH’s limited resources. This increased competition for limited funds is an actual, imminent injury.
Is this guy serious?  Clearly he doesn't get how research funding works, and this argument smells of a false dichotomy. If the plaintiffs can't get grant money, it could also be because their applications are sub-par, because they have a lot of competition from other ASC researchers or because researchers in other biomedical fields are getting all the funding.  Arguing that NIH funding is competitive and therefore injurious to the plaintiffs is simply absurd.

As you'll see below, the judge goes on to contradicts himself here by saying that ECS researchers won't be harmed by an injunction blocking them from NIH funding, because they still have access to private funding.  So ESC researchers are more competitive for NIH funds, and that's injurious to the plaintiffs... but prohibiting ESC entirely from even joining the competition is somehow not injurious to them??

While we're at it - who are these ASC researchers among the plaintiffs?  They appear to be James L. Sherley and Theresa Deisher.

James L. Sherley went on a hunger strike when he was denied tenure at MIT in 2006 citing racial discrimination as the cause of his tenure denial. He's currently a senior scientist at Boston Biomedical Research Institute.

Theresa Deisher doesn't appear to currently be doing research.  She's the R&D Director for AVM Biotechology: a self-described "pro-life" organization that looks like it hasn't produced any real science... ever.  Their "Research" page is laughable:  a pretty unscientific list of three "websites" next to three links to journal articles -- none of which mention AVM Biotechnology and none of which appear to have anything to do with them. She's also President of the Sound Choice Pharmaceutical Institute which is also a pro-life organization that seems to do zero basic medical or biotech research... at least not yet.

Anyway, on to consideration of what an injunction would mean for the defendants...

(3) Not substantially injurious to the defendants?

Here's what the judge had to say in his ruling...
The balance of hardships weighs in favor of an injunction.
Um, why?
Defendants argue that two interested parties would be injured if the Court issues an injunction: ESC researchers and individuals who suffer from diseases that may be treatable in the future as a result of ESC research.

Yes, the "interested parties" are the researchers who would lose even the opportunity to compete for NIH funds, and the many sick individuals who wouldn't recieve whatever medial treatments are waiting to be discovered by continued ESC research.  So what does the judge think about their situation?
The injunction, however, would not seriously harm ESC researchers because the injunction would simply preserve the status quo and would not interfere with their ability to obtain private funding for their research.
Um... WHAT!?  Here the judge appears to be contradicting the argument given in criteria (2) above, saying that ECS researchers don't really need NIH funds, while ASC researchers do. 

As for the suffering among us...
In addition, the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative.
In his own ruling the judge states that "Recent studies... suggest that ESCs will contribute to the development of medical knowledge in the future" and he clearly lays out the great potential embryonic stem cell research holds for future medical advancements.  Where this dismissal comes from is beyond me.


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