Judge Douglas Ginsburg, appointed by President Ronald Reagan, wrote that it was "entirely reasonable" for the NIH to interpret the law as "permitting funding for research using cell lines derived without federal funding, even as it bars funding for the derivation of additional lines."
In a dissenting opinion, Judge Karen LeCraft Henderson, appointed by President George H.W. Bush, said the federal law was clear about banning funding for human embryonic stem cell research and that the court majority was engaging in "linguistic jujitsu" to back it.
The case emerged from two researchers who opposed work with embryonic stem cells and sued to block such funding. They argued that they were at risk of being squeezed out of federal grants for their own work with adult stem cells, which do not involve the destruction of embryos.
The researchers, Dr. James Sherley, a biological engineer at Boston Biomedical Research Institute, and Theresa Deisher, of Washington-based AVM Biotechnology, could appeal the ruling to the full appeals court, a lawyer involved in the case said.