Divided 7th Circuit Lifts Injunction Against Indiana Fetal-Tissue Research Ban

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Dave Stafford for www.theindianalawyer.com

An Indianapolis judge’s ruling that blocked an Indiana law effectively banning stem cell research derived from aborted fetal tissue was reversed by a divided 7th Circuit Court of Appeals panel Thursday. The 2-1 decision is a defeat for Indiana University researchers challenging the ban, and a dissenting judge questioned the state’s motivation and intent behind a law he said threatens IU research into potential treatments for Alzheimer’s disease and other disorders.

The majority opinion lifts an injunction on the state’s fetal-tissue ban that Indiana Southern District Chief Judge Jane Magnus-Stinson imposed in December 2017. Magnus-Stinson ruled the statute’s language prohibiting the sale, transfer, receipt and acquiring of aborted fetal tissue was unconstitutionally vague.

Indiana Code section 35-46-5-1.5, adopted in 2016 with then-Gov. Mike Pence’s signing of House Enrolled Act 1337, imposes a Level 5 felony for a person who intentionally obtains the tissue. IU challenged the law, citing its potentially chilling effect on medical research, particularly involving stem cells.

But the 7th Circuit majority ruled Magnus-Stinson overreached in blocking the law from taking effect.

“A federal district court held that several terms in this statute are unconstitutionally vague,” Judge Frank Easterbrook wrote for the majority joined by Judge Michael Scudder. “… The district court thus held that the words ‘acquires’, ‘receives’, and ‘transfers’, and the phrase ‘any other part’, are too uncertain to have legal force. If that is right, then big chunks of the legal system are invalid, because those words are ubiquitous in statutes, regulations, and judicial opinions.”

“Take ‘transfers.’ The judge thought it hard to know whether a medical researcher ‘transfers’ fetal material by passing a pipette containing fetal tissue to someone else at the same laboratory bench,” Easterbrook continued. “… Or take the phrase ‘any other part.’ Although this ensures that the statute covers every part of a fetus, the judge thought it hard to say how things work at the level of individual cells or strands of DNA.

“Suppose someone in Washington state (from which much of Indiana University’s fetal tissue comes) extracts a few cells from an aborted fetus and uses them to create a line of stem‐cell tissue, exemplars of which (dozens of generations later) are transferred to a researcher in Indiana. Is anything derived from fetal tissue included in the phrase ‘any other part’?” he wrote. “The judge did not see a clear answer. … These and similar open questions led the judge to deem the words and phrase unconstitutional.”

But dissenting Judge David Hamilton wrote in a 21-page dissent that the injunction should be affirmed, agreeing with Magnus-Stinson that the law is unconstitutionally vague because it failed to clearly put researchers on notice of what scientific activities could put them in criminal jeopardy, and because the state has offered some assurances that prosecuting researchers was not the intent of the law. But Hamilton wrote the plain language of the statute threatens research at IU, which houses the National Cell Repository for Alzheimer’s Disease, one of 32 centers studying the disease that receives funding from the National Institutes of Health.

“As best I can tell, the State’s lawyers seem to be trying to prevent the new law from having effects that would flow naturally from the statutory language but that seem not to be sensible from a practical or policy perspective,” Hamilton wrote. “Implicit in the effort is the concession that, as drafted, the operative portions of § 1.5 will have undesired and unintended effects that will interfere with important and legitimate medical research. In other words, the State’s lawyers seem to be trying to save the legislature from itself. The majority nonetheless defends the potentially extreme outcome of this statute… .”

“… The vagueness problem stems from the fact that it’s impossible to know what weight to give the State’s assurances. The proposed limits might well be sensible as a matter of policy,” Hamilton continued. “But as the district judge pointed out, these proposed limits have no apparent basis in the statutory text, and the State has not explained how it derives those supposedly comforting limits from the Indiana law. The State’s lawyers asserted in oral argument that their assurances would be binding on the State and its present and future prosecuting attorneys. That remains to be seen.”

Hamilton also documented what he described as limited but confusing Statehouse debate on the measure, which was part of a larger abortion measure, of which two portions are being defended against 7th Circuit injunctions in the state’s writ of certiorari before the United States Supreme Court.

Regarding the language and effect of the fetal tissue ban, Hamilton wrote that lawmakers abdicated enforcement decisions to prosecutors and judges. Terry Curry and Chris Gaal, respectively the prosecutors of Marion and Monroe counties – where IU research is carried out – have said they did not believe researchers’ activities violated the law. Curry and Gaal are named as defendants in this litigation.

Hamilton also delved into legislative history, noting bill backer Sen. Travis Holdman, R-Markle, indicated in the Indiana General Assembly that he did not believe the proposed law would block medical research.

“This highly unusual record ought to raise warning flags for us. The statute is fatally vague because its supporters did not pay enough attention to rendering it intelligible as applied to this medical research, which is the relevant core, not the periphery, of this statute,” Hamilton wrote.

“Indiana is absolutely permitted to, as one legislator put it, move up from being ‘49 out of 50’ in terms of abortion restrictions, and ‘attempt[] to be the most restrictive state in the country … shooting for 50.’ Senate Committee Hearing at 1:47:22–1:47:32 (Feb. 24, 2016),” the judge wrote. “But it is our job to insist that the effort remains within constitutional parameters: that a new criminal law gives fair notice of what is criminal and what is not, and that the legislature makes the key choices rather than delegate them to prosecutors and courts. That simply did not happen with § 1.5. I would affirm the district court’s injunction against its enforcement as written.”

The majority, however, held that researchers could bring clarity to the statute by seeking a declaratory judgment in state court that their work would not run afoul of the statute – a remedy Hamilton said placed an undue burden on them.

“Yet none of the plaintiffs has filed such a suit seeking assurances about the scope of §35‐46‐5‐1.5. Instead of using a readily available state‐law remedy for unwelcome risk, they asked a federal court to blot the law from the books. That’s not how uncertainty should be addressed,” Easterbrook wrote.

“Indiana’s statute may or may not be sensible — for even persons who find abortion immoral must recognize that neurological research using fetal tissue can save innocent lives — but choosing sides in an ethical debate does not condemn a law,” Easterbrook wrote for the majority.

The consolidated cases are Trustees of Indiana University, et al. v. Terry Curry and Christopher Gaal, 18‐1146, 18‐1247 and 18‐1308.

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