Research community fears judgment allowing $800 million funding cull will tie up science in courts
The US Supreme Court has partly overturned a ruling that required the National Institutes of Health to restore $783 million in research funding the Trump administration had linked to diversity, equity and inclusion.
Research advocates are warning that the ruling on NIH funding jeopardises public health, medicine and science. They also raised concerns that critical decisions on funding will now be tied up in the court system, leaving researchers inlimbo.
TheAssociation of American Medical Colleges said in a statement:“Make nomistake: this was a decision critical to the future of the nation, and the Supreme Court made the wrong choice. History will look upon these mass National Institutes of Health research grant terminations with shame.
“The court has turned a blind eye to this grievous attack on science and medicine, and we call upon Congress to take action to restore the rule of law at NIH.”
Litigation againstthe federal agency and the US Department of Health and Human Services (HHS), which oversees it, over the terminated grants was brought in early April bya coalition of individuals and groups including the American Public Health Association and the American Civil Liberties Union (ACLU), and separately by 16 state attorneys-general.
Jurisdictional issues
In June, US District Court judge William Young in Boston, presiding over the lawsuits, ruled the cancellations “void and illegal” and ordered thatfunding bereinstated.
But the Supreme Court judgment on 21August partially stayed Judge Young’s ruling. The split decision, with five judges supporting the Trump administration’s action and four favouring the plaintiffs, in effect halts the reinstatement of the terminated grants by theNIH.
The Supreme Court ruled that the District Court lacked the jurisdiction to deal with the loss of grant money in the terminations and that the matter should instead go to the Court of Federal Claims.
However, it did not grant the government a stay on the part of Judge Young’s previous judgment on the policy behind the grant termination decisions. This means that the previous ruling on the rationale behind the cancellations still stands, so additional grants cannot be terminated for these reasons while the case is ongoing.
The legal team for the plaintiffs said in a statement published on the ACLU website that it was “very disappointed” by the ruling that the legal challenge on the grant terminations was likely to belong to the Court of Federal Claims. It called the decision a “significant setback for public health”.
However, the legal team added, “it is important to note that the Supreme Court declined to stay the District Court’s conclusion that the NIH’s directives were unreasonable and unlawful. This means that NIH cannot terminate any research studies based on these unlawful directives.”
‘Lose now and lose later’
“This Supreme Court decision has the practical effect of tying this up in the courts, which is chilling for American science,” said Colette Delawalla, founder and executive director of the non-profit grassroots organisation Stand Up for Science.
She told Research Professional News: “Scientists who have had their funding stripped away will not be able to continue work or restart it even if they succeed in a long and expensive legal battle.
“This also limits any further research in these areas due to the spectre of abrupt cancellation of any future funding. The decision creates a ‘lose now and lose later’ situation for American scientists, and the public will suffer the damage.”
Jeremy Berg,a former director of the NIH’s National Institute of General Medical Sciences, said that while he was pleased“that the Supreme Court did conclude that the terminations were probably illegal, the fact that they overturned the order to reinstate the awards is wrong-headed for a variety of reasons”.
“The continued uncertainties are certainly not helping science. The fact that SCOTUS [the Supreme Court] ruled on jurisdictional issues does not take away from the damage,” he told Research Professional News.
He haswritten aletterto the NIH director, Jay Bhattacharya, raising some of the issues around the ruling, and also arguing that if grants are either not reinstated or are re-terminated it will affect public trust in the agency.
Science and uncertainty
Jenna Norton,a programme director at the NIH’s National Institute of Diabetes and Digestive and Kidney Diseases, who was not involved in the lawsuits, said that after the June court judgment, projects were reinstated by an 11July deadline. She said that the NIH has not yet issued any guidance regarding the latest ruling.
Speaking in a personal capacity, she told Research Professional News: “Many are worried that [Russell] Vought [director of the Office of Management and Budget], Trump and Bhattacharya will be emboldened by the permission SCOTUS granted them and act to re-terminate the grants. This would be incredibly damaging to all science—not just the 900 impacted studies.
“Time spent re-terminating these grants is time that can’t be spent on other grant actions in a year that NIH is already incredibly behind.”
Norton added: “Science cannot function under the uncertain conditions reinforced by this ruling. If NIH can change its mind and terminate a study without reason—just based on political whims—how can scientists be expected to hire staff, recruit participants or even bank their career on NIH funding?”
The HHS and the NIH have been approached for comment but had not responded by the time of publication.
