California stem cell institute ruled 'constitutional'

A US court has ruled that the law that created the California Institute of Regenerative Medicine (CIRM) was in fact constitutional. The claimants in the lawsuit challenging the setting up of the CIRM were arguing that the institute, which is authorised to distribute $3 billion in research grants for stem cell research projects in California, including those using human embryos, is unconstitutional because the spending of taxpayer's money must be under state control.

In November 2004, 59 per cent of Californians voted in favour of Proposition 71, which established the CIRM and authorised it to issue bonds to fund $3 billion of grants for human embryonic stem cell (ES cell) research in the state. But since then, two lawsuits - taken by pro-life and 'politically conservative interest groups' - have delayed the institute's operations. The lawsuits alleged that because the board members of the CIRM are not elected officials, they have no authority to distribute public funds. The delay caused by the lawsuits meant that the agency could not start work, meaning the issuing of funds for ES cell research was severely delayed.

Last November, in a hearing at the Alameda County Superior Court, Judge Bonnie Lewman Sabraw ruled that the legal arguments relied upon by the stem cell programme's opponents did not stand up, which should have meant that the first grants could then have been issued. Judge Sabraw had been asked to throw out the lawsuits, which were deliberately designed to disrupt the work of the State's stem cell agency. She said the plaintiffs had failed to overcome a fundamental presumption that voter mandates - such as that given to Proposition 71 - must be honoured unless they were 'clearly, positively and unmistakably unconstitutional'. However, the lawsuits were not thrown out in their entirety and a further hearing was scheduled.

Earlier this month, while waiting for the outcome of the lawsuits, a state panel authorised the CIRM to borrow up to $200 million from large philanthropic organisations in the form of 'bond anticipation notes' so that it could begin to issue grants. Six private organisations and charitable foundations came forward to purchase $14 million worth of short term bond anticipation notes to fund the CIRM until the legal challenges were settled. Robert Klein, chair of the CIRM, said that he will continue to work to secure another $36 million of bonds.

Now, Judge Sabraw has held that the CIRM is in fact constitutional, opening the way for the state to begin issuing funds for ES cell research. She reiterated the requirement that the plaintiffs had to show that Proposition 71 was 'clearly, positively and unmistakably unconstitutional' and said they had still failed to do so, and therefore that bonds issued by the CIRM would be valid. In what has been described as a 'strongly worded judgment', she said that the plaintiffs 'did not present any evidence that the state is appropriating funds for any purpose or benefit other than a public purpose, the public purpose declared in Proposition 71 of fighting disease and promoting the general economy of the state'.

Dana Cody, director of the Life Legal Defence Fund, one of the groups challenging the CIRM, said 'we are disappointed but not surprised with the judges ruling', adding that the judge had 'failed to engage our arguments and case law'. The challenging groups have vowed to appeal the decision to the California Supreme Court, which will cause further delays.