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Federal Judge Blocks Indiana’s Fetal-Tissue Restrictions

Siding with a university that uses fetal tissue for research, a federal judge ruled Friday that an Indiana law criminalizing the acquisition of aborted fetal tissue is unconstitutionally vague.

(CN) – Siding with a university that uses fetal tissue for research, a federal judge ruled Friday that an Indiana law criminalizing the acquisition of aborted fetal tissue is unconstitutionally vague.

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.

Researchers at the university study Alzheimer’s and other brain diseases.  Professor Debomoy Lahiri has been using fetal tissue in his research since 2011 as a control to understand differences between healthy and unhealthy brains.

IU obtains tissue for Lahiri’s research from the University of Washington’s Birth Defects Research Lab. The university only pays shipping costs of $200, and each shipment is contained within two teaspoons of liquid.

The Indiana law criminalizing the “unlawful transfer of fetal tissue” went into effect on July 1, 2016. It calls for a three-year prison sentence and a fine of up to $10,000 for any violation.

IU claimed that the law violates the equal protection and due process clauses of the U.S. Constitution, as well as the First Amendment for allegedly abridging the university’s academic freedom.

It claimed the law “could delay an important breakthrough in treatments and cures to patients with a variety of debilitating neurological disorders.”

IU and Lahiri – as well as co-plaintiffs Fred Cate, the university’s vice president for research, and geneticist Bruce Lamb – sued in May 2016, and are represented by attorney Scott Chinn of Faegre Baker Daniels.

In a 42-page opinion issued Friday, Chief U.S. District Judge Jane Magnus-Stinson in Indianapolis found that the fetal-tissue provision of HEA 1337 violates the due process clause and is void because it is too vague.

Both sides argued over the law’s definition of fetal tissue as “tissue, organs or any other part of an aborted fetus.”

The prosecutors had argued that the “undisputed evidence is that the smallest distinguishable part of a fetus is a cell.”

The university, by contrast, argued that the term “part of” does not “have a discernible meaning from a scientific perspective, and that a person of ordinary intelligence could not determine what materials are considered ‘any other part’ of a fetus,” according to the ruling.

Judge Magnus-Stinson wrote that the definition of “any other part of an aborted fetus” becomes unclear when the cells grow, divide and are transferred during research.

“Given that defendants have not been able to furnish a consistent definition of the term, it is hardly plausible that a person of ordinary intelligence would be able to determine what conduct is prohibited,” Magnus-Stinson wrote.

She added that the words “acquire,” “receive” and “transfer” are also vague within the statute, which allows a woman who has an abortion to leave the clinic with the fetal tissue.

“No other constraints are placed upon the woman’s disposition of that fetal tissue after she receives it, raising obvious questions as to how the instant statute’s prohibitions would apply to the handling of that tissue,” the judge wrote, enjoining the prosecutors from enforcing the vague portions of the fetal-tissue restrictions.

Magnus-Stinson also ruled that IU has standing to challenge the law because it “has alleged a plausible threat of prosecution under the statute.”

She denied both parties’ motions for summary judgment on IU’s Fifth Amendment challenge because “without knowing what material is covered by the statute, and precisely what conduct is prohibited, the Court cannot determine the statute’s economic impact and the degree to which it interferes with IU’s property interests.”

Magnus-Stinson ruled in the prosecutors’ favor on IU’s First Amendment challenge, finding that the university “has not established that research is itself expressive conduct to which the First Amendment applies.”

“Ensuring that research on human tissue is done ethically,” she wrote, “is a legitimate governmental interest.”

John Bursch, outside counsel for the prosecutors' offices, declined to comment on the ruling. Attorneys for IU did not immediately respond Tuesday to a request for comment.

HEA 1337 also prohibits abortions when they are solely performed because of the fetus’ gender, nationality or diagnosis of a disability.

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