CHICAGO (CN) – The Seventh Circuit heard oral arguments Wednesday in a case challenging Indiana’s law criminalizing the acquisition of aborted fetal tissue, but the three-judge panel repeatedly questioned whether the case didn’t better belong in state court.
“What is this case doing here?” U.S. Circuit Judge Frank Easterbrook asked both parties at the hearing Wednesday morning, and the attorneys spent most of their time parrying his jurisdictional concerns.
Indiana University’s trustees challenged an abortion-related provision of Indiana House Enrolled Act 1337 in a lawsuit against the prosecutors of Marion and Monroe counties.
The 2016 law criminalizes the “unlawful transfer of fetal tissue,” imposing a six-year prison sentence and a fine of up to $10,000 for any violation.
The county prosecutors assert that the law does not apply to individual possession of the samples, so a lab tech that hands the tissue sample to another lab tech would not be criminally liable for “transferring” the sample - but a person who sold the tissue to an entity separate from the university could be prosecuted.
But last year, a federal judge agreed with the university that the word “transfer,” as well as the words “acquire” and “receive” in the statute, are unconstitutionally vague, because they do not clearly indicate what kind of transfers are unlawful.
On Wednesday, U.S. Circuit Judge David Hamilton pointed out that the prosecutors’ interpretation of the law does not align with federal laws prohibiting the transfer of drugs.
“I think I’m a reasonable person,” he said, “and your position seems to be unique,” he told John Bursch of Bursch Law, who represents the prosecutors.
Judge Easterbrook was not interested in resolving this question, however.
“Why does it matter to the federal Constitution what the meaning of ‘transfer’ is when the Indiana judiciary can resolve this issue?” he asked.
Bursch said that the question before the court is whether the word “transfer” is vague, or merely ambiguous - which is not unconstitutional.
“I find that a most ambiguously vague assertion,” Easterbrook quipped.
Researchers at the university study Alzheimer’s and other brain diseases. In particular, professor Debomoy Lahiri has been using fetal tissue in his research since 2011 as a control to understand differences between healthy and unhealthy brains.
Bursch told the court that professor Lahiri could be found guilty of violating the statute four to five times a year, but the current prosecutors of Marion and Monroe counties have said they will not prosecute him under the law. However, Bursch acknowledged that the prosecutors’ word would not be binding on their successors.
“That’s an awfully high risk for Dr. Lahiri,” U.S. Circuit Judge Michael Scudder said.
Echoing Judge Hamilton’s point, Scudder said, “I don’t know why you’re saying that a transfer from one member of a lab to another is not a transfer.”
Judge Scudder asked the university’s attorney, Scott Chinn of Faegre Baker Daniels, whether the enforcement of the law against intra-lab transfers would resolve the statute’s vagueness. Chinn acknowledged that such a reading would be consistent, although it would be against the university’s interests.
But Chinn struggled to address Judge Easterbrook’s question of why the university didn’t file for a declaratory judgment in state court to address the correct interpretation of the statute.
The attorney urged the court to affirm the lower court’s decision in order to protect life-saving research being done at the university.
For example, he said Dr. Lahiri is uncertain at this juncture whether it would be a crime to order tissue from a lab, which would secure ownership of it in another state, then transfer the tissue to a third party carrier such as FedEx.
“Indiana has a very large judiciary that would be happy to answer that question,” Easterbrook said. “[Indiana’s judges] have to make a living somehow.”
The Seventh Circuit struck down another provision of HEA 1337 in April, which prohibited abortions when they are solely performed because of the fetus’ gender, nationality or diagnosis of a disability.
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