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A U.S. Justice Department lawyer on Monday tried to convince an appeals court in Washington that a trial judge went too far in issuing an injunction that blocks federal funding of human embryonic stem cell research. Beth Brinkmann, a top appellate lawyer in the department’s Civil Division, argued that the government is not paying for research that endangers or destroys human embryos. Federal law bans government support for research in which a human embryo is destroyed. Arguing before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, Brinkmann sought to distinguish between research on stem cell lines and research in which stem cells are derived from embryos. The government is challenging the preliminary injunction that Chief Judge Royce Lamberth of Washington’s federal trial court issued in September. Circuit Judge Thomas Griffith, who heard the dispute with judges Douglas Ginsburg and Karen LeCraft Henderson, questioned Brinkmann extensively over whether the initial research, wherein a stem cell line is derived, is “inextricably intertwined” with the later research on the cells themselves. Brinkmann replied that the creation of a stem cell line from an embryo may have occurred years earlier and have subsequently provided stem cells to any number of other research projects. She said Congress never intended to ban funding for any research using embryonic stem cells. “Congress knows what it is doing in this area,” Brinkmann said. A group of scientists who work with adult stem cells maintains that National Institutes of Health guidelines that took effect last year put the researchers at a competitive disadvantage when it comes to securing federal funding. Gibson, Dunn & Crutcher partner Thomas Hungar argued for doctors James Sherley and Theresa Deisher the lead plaintiffs in the case. Sherley is an adult stem cell researcher at the Boston Biomedical Research Institute. Deisher is also an adult stem cell researcher who is the founder and research and development director of Seattle-based AVM Biotechnology. “It’s undisputed that human embryonic stem cell research always entails the destruction of embryos,” Hungar said. The derivation of a stem cell line and subsequent research are “part and parcel.” Responding to a question from Griffith about the legality of the guidelines under the second Bush administration, Hungar said that, in his opinion, the scheme was illegal. “But of course that question is not before the court,” Hungar said. In the trial court, the opposing sides have filed motions for summary judgment. Lamberth has not issued a ruling. Enforcement of the preliminary injunction is pending the D.C. Circuit’s ruling. Mike Scarcella can be contacted at [email protected].

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