“This case is not over,” said lead attorney Samuel B. Casey about Friday’s 2-1 decision by the U.S. Court of Appeals in Washington D.C. that gave the green light for the destruction of human embryonic stem cells for research purposes. That action overturns an injunction put in place by a District Court judge last summer.
In an interview with Catholic Lane, attorney Samuel B. Casey said the case will, in all likelihood, return back to District Court in Washington D.C. Casey also said, “This is just another step in a lengthy legal battle, unfortunately for now it is open hunting season on human embryos.”
In last Friday’s decision the Appeals Court found that the co-plaintiffs in the case, Dr. James Sherley and Dr. Theresa Deisher, were, “unlikely to prevail” if their case actually went to trial. Further the court concluded that the National Institutes for Health (NIH) Guidelines did not violate provisions of the Dickey-Wicket Amendment. This is the annual appropriations rider that bars federal funding for research in which a human embryo is destroyed. Under President Obama’s administration, the NIH proposed guidelines whereby federal dollars could be used to fund human embryo research projects.
“But that was only one of the four claims we brought to the District Court,” said Casey. “And when Judge Lamberth (Chief Judge of the United States District Court for the District of Columbia) ruled in our favor last August, that was a grand slam home run for our side. And last Friday, if the Appellate Court had ruled in our favor, that would have been another grand slam and the case would have been over. But it is far from over now,” said Casey.
All four issues, brought originally before Judge Lamberth, can still be decided on their own merits. “We originally asked Judge Lamberth to rule more broadly back last summer, but when he saw the first issue he basically said, ‘this is so clear, such a violation. that I don’t even have to rule on the merits of the case’ and granted the preliminary injunction, which quite frankly was a surprise to all of us,” said Casey.
Casey encouraged people to read Friday’s 34-page decision, which is posted at this link: (http://www.cadc.uscourts.gov/internet/opinions.nsf  the case is James Sherley v. Kathleen Sebelius.) “I would especially ask people to read the blistering dissenting opinion of Judge Karen LeCraft Henderson, accusing her two colleagues on the bench of performing “linguistic jujitsu,” said Casey.
In her dissent, Judge Henderson points out that, in her view, “the majority opinion strains mightily to find the ambiguity the Government presses.” At one point Judge Henderson writes, “The Government’s suggested change in inflection can fairly be described as Clintonesque (“It depends what the meaning of the word ‘is’ is.”)”
Casey said his side will have 45 days in which to decide whether to bring the case back before the Appeals Court to overturn, or 60 days to take the case to the U.S. Supreme Court. Neither of those scenarios are likely to be as successful as taking the case back to District Court and arguing the merits of the original four issues before Judge Lamberth.
“Our best arguments outside of the Dickey-Wicket amendment ones are that an agency cannot violate the federal Administrative Procedures Act,” said Casey. “That prevents agencies, like the NIH from adopting a regulation that violates federal law. It also says that you cannot ignore comments from the federal register. There were 40,000 comments on this issue that were never responded to. And finally you can’t come to a decision with your mind made up. We believe the interim NIH director had his mind made up before the decision to use federal dollars to destroy human embryos was made; you can’t do that.”
Open Season Now on Human Embryos
In the meantime, Casey believes that valuable research dollars that could go to adult stem research, which has a proven track record of results, will be quickly diverted to fund research and kill human embryos. “Once we allow the destruction of our most innocent, then we are doomed,” said Casey. “This is the abortion debate all over again. Once people, especially misguided Catholics, give consent to this kind of destruction of life, then they will have to justify it for the rest of their lives. We are descending into a horror of unimaginable depths, where we are going to breed humans to fix other humans, to manufacture people,” said Casey.
Casey, an Irish-Catholic left the faith and came back to the Church as revert in his late 20’s. Between the time his parents sadly divorced and his reversion, he called himself an “Essentialist Hedonist.” Marrying an Evangelical, Casey thought about being a Protestant minister himself, “until I learned about the history of the Church. And when I read the writing of Blessed John Paul II, wow, he was the only religious person in the 1980’s that made any sense to me.”
Casey said that the Sherley v. Sebelius case is an important one, particularly for Catholics, to understand, “because if we don’t understand the consequences of what is being decided here, then we are in for some horrific outcomes.”
The Catholic Church teaches — through the Congregation for the Doctrine of the Faith in Dignitas personae — about the dignity of all persons from the moment of conception until natural death. In Dignitas personae number 32 it says, “the use of embryonic stem cells or differentiated cells derived from them – even when these are provided by other researchers through the destruction of embryos or when such cells are commercially available — presents serious problems from the standpoint of cooperation in evil and scandal.”
This means, according to the Catholic Church, any research with human embryonic stem cells is morally wrong because of its close link to the grave moral evil that comes with the unjust killing of innocent human beings.
“If we cannot protect our most innocent human beings, then the strong will prey on the weakest because that is how it always works throughout history,” said Casey.