Contact: Samuel B. Casey, 703-624-4092 cell, 202-587-5652

WASHINGTON, Oct. 10, 2012 /Christian Newswire/ -- Today, on behalf of the adult stem researchers it represents, the Jubilee Campaign's Law of Life Project and their co-counsel at the Alliance Defending Freedom and Gibson, Dunn & Crutcher, have filed a petition for certiorari with the Supreme Court of the United States.  The petition makes two central arguments: first, that the D.C. Court of Appeals erred in holding that an Executive Order can and did excuse an agency's failure to comply with the Administrative Procedure Act; and second, that the Court of Appeals erred in holding that a preliminary injunction ruling is binding 'law' of the case. 

Petitioners, Drs. James L. Sherley and Theresa Deisher, initially brought this case over three years ago when, in response to President Obama's March 9, 2009, Executive Order, the NIH published and noticed for public comment regulatory guidelines allowing federal funds to be used for the first time for the creation of new stem cell lines (hESC) requiring and providing incentives for the destruction of living human embryos. The Petitioners contended then -- and, indeed, continue to argue -- that the National Institutes of Health (NIH) Guidelines for funding human embryonic stem-cell research are invalid because they not only disregard the limitations in the Executive Order but also violate the federal law known as the Dickey-Wicker Amendment and because they were promulgated in violation of the Administrative Procedure Act.

After the NIH initially promulgated its proposed guidelines, they received approximately 49,000 public comments, more than 60% of which -- that is, approximately 30,000 -- raised serious and highly relevant questions about the ethics and scientific merits of human embryonic stem cell research.  The NIH refused to consider those comments, however, erroneously saying that the President's Executive Order precluded such consideration that would otherwise have been required by the Administrative Procedure Act.  Gibson, Dunn and Crutcher partner, Tom Hungar stated:

"The challenged NIH Guidelines clearly violate the Dickey-Wicker Amendment, but NIH's decision to turn a blind eye to tens of thousands of comments demonstrating that human embryonic stem cell research can't be justified even under the government's own criteria means that the NIH's guidelines were promulgated in violation of the Administrative Procedure Act."

Nevertheless, the D.C. Circuit Court of Appeals incorrectly held that NIH's refusal to address numerous comments that it received in promulgating the Guidelines was justified by an executive order (Executive Order 13,505) issued by President Obama. 

Petitioners' request for certiorari argues that the D.C. Circuit's holding embraces a fundamentally mistaken and unprecedented view of Executive power, authorizing the President to exempt agencies from the APA's requirements at will: "If allowed to stand, the decision below would eviscerate the vital checks that Congress has imposed on agencies to ensure transparency, accountability, and rationality in administrative decision-making."

Under the D.C. Circuit's erroneous rulings, Petitioners cannot challenge the NIH's guidelines directly.  Accordingly, the petition argues that because the President cannot dictate the outcome of a rulemaking in advance, declare all dissenting views and contrary data irrelevant, and essentially circumvent the ban on arbitrary and capricious agency action by instructing an agency to act in a way that plainly violates federal law, the D.C. Circuit was wrong to reject Petitioner's claim that the NIH Guidelines violate the Administrative Procedure Act.

Additionally, the petition contends that the D.C. Circuit wrongly declined to resolve Petitioners' claim that the NIH Guidelines violate the Dickey-Wicker Amendment, by ruling that the preliminary-injunction decision in this case was a "definitive, fully considered [one]" made on what it later deemed a "fully developed factual record."  However, Supreme Court case law makes clear that rulings by a court granting a preliminary injunction are not binding at later stages of the case, so the D.C. Circuit panel erred in concluding that the preliminary-injunction ruling resolved the Dickey-Wicker Amendment claim. 

Thus, this appeal to the United States Supreme Court is necessary to correct procedural errors made by the courts below so that this important case may finally be resolved on the merits.  The Jubilee Campaign Law of Life Project's General Counsel, Sam Casey, said:

'Each time federal grant money is awarded to support human embryonic stem cell research, living human embryos are at risk.  Not only is this an ethical tragedy, as well as a waste of taxpayers' money on unethical research that has not to date led to any therapeutic benefits, but it is also a clear violation of federal law.  The President, by authorizing NIH non-compliance with federal law, has overstepped his legal boundaries, and it is imperative that the Supreme Court step in to provide the needed constitutional check. The Constitution and the Supreme Court say Congress enacts the laws in this country, not the Executive Branch."

A copy of the court filing in the United States Supreme Court is available here or upon request.

About the Jubilee Campaign's Law of Life Project
The Law of Life Project is a public interest legal organization dedicated to legally defending the right to life and dignity of the human being from biological conception until natural death in all matters worldwide where such a defense is required.  Jubilee Campaign is an international charitable organization that seeks to be a "voice for the voiceless" promoting the human rights of all, particularly women and children in countries which imprison, terrorize or otherwise oppress them. www.lawoflifeproject.org