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Sherley continues arguing against stem cell research in court

James L. Sherley, the former Course 20 MIT professor trying to stop government funding of embryonic stem cell research, had his day in court yesterday — again. This was his third time before the appeals court.

Sherley is now appealing on the merits of his case, after a complex sequence of court events. The D.C. district court found preliminarily in his favor, but the government appealed and the appeals court found against him on the preliminary injunction. Then the district court, respecting the appeals court’s decision, ultimately found against Sherley.

Both sides argued yesterday before a three-judge panel, which included Chief Judge David B. Sentelle. According to coverage by Science and Nature, Sentelle asked most of the questions in the oral argument.

Sentelle, joined by Judge Janice R. Brown, strongly focused on the question of whether the appeals court was bound by its earlier decision on the preliminary injunction (against Sherley).

Yesterday’s three-judge panel was a different panel from the one that decided the earlier question, although it had one member in common, Karen L. Henderson. Henderson did not speak during yesterday’s oral argument. In the earlier decision, she dissented from the appeal’s court decision and voted in favor of Sherley, calling the government’s argument “linguistic jujitsu.”

Brown also asked questions about Congress’ intentions. Congress passed the appropriations amendment barring government funding of research that harms embryos using the same language, over and over. Sherley alleges that amendment bars embryonic stem cell research, but the government disagrees.

The appeals court is not expected to rule for several months. Sherley’s attorneys have expressed the intention to take the case all the way to the Supreme Court.

—John A. Hawkinson