Seventh Circuit OKs Indiana Fetal-Tissue Ban

CHICAGO (CN) – A divided Seventh Circuit panel reversed an injunction blocking an Indiana law criminalizing the acquisition of aborted fetal tissue, ruling against a university that uses the tissue for research.

Thursday’s 2-1 decision overturns a ruling from a federal judge who found several words in the statute to be unconstitutionally vague because they do not clearly indicate what kind of transfers are unlawful.

The statute says a “person who intentionally acquires, receives, sells, or transfers fetal tissue commits unlawful transfer of fetal tissue, a level 5 felony.”

“The district court…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,” U.S. Circuit Judge Frank Easterbrook wrote for the majority Thursday.

The ruling stems from a 2016 lawsuit against the prosecutors of Marion and Monroe counties brought by Indiana University’s trustees, who claim researchers could face a six-year prison sentence and fine of up to $10,000 for violating the abortion-related provision of Indiana House Enrolled Act 1337.

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

The university argues the law violates the First Amendment because it curtails academic freedom, and also violates the equal protection and commerce clauses of the U.S. Constitution.

The three-judge panel heard oral arguments last September from university attorney Scott Chinn of Faegre Baker Daniels and John Bursch, who represented the state prosecutors.

In the 12-page majority opinion, Judge Easterbrook shot down the First Amendment claim, calling it “a non-starter.”

“Plaintiffs assert that the statute casts ‘a pall of orthodoxy over the classroom’, but it does not,” he wrote. “They can say, write, and teach anything they want. They can refer to results generated by work done on aborted fetal tissue in other states and nations. But they cannot treat enforcement of rules about conduct as equivalent to prohibitions of speech.”

Easterbrook also found that the law does not go against interstate commerce because it applies equally to fetal tissue from all states, and outright bans on certain items do not violate the Commerce Clause.

Lastly, he rejected the university’s unlawful takings claim.

“The university, as part of Indiana, is not entitled to sue its own state. Indiana’s legislature is free to decide what use (including none) to make of Indiana’s property,” the ruling states. (Parentheses in original.)

Easterbrook was joined in the majority by U.S. Circuit Judge Michael Scudder.  

U.S. Circuit Judge David Hamilton penned a blistering 21-page dissent, arguing that the Indiana law is unconstitutionally vague and did not threaten to invalidate “big chunks of the legal system.”

“It turns out that interpreting this law is a mess,” he wrote. “In fact, the whole process makes a mockery of the standard that any ‘normal person’ could figure out what is included in ‘any other part of an aborted fetus.’”

Hamilton added, “It is not the job of courts to tell legislators what processes to follow toward the final enactment of the statutory language of their choice. But it is our job to insist that the effort remain within constitutional parameters: that a new criminal law give fair notice of what is criminal and what is not, and that the legislature make the key choices rather than delegate them to prosecutors and courts.”

He also said the university’s takings claim in not yet ripe due to the uncertainty surrounding the actual scope of the statute.

The state prosecutors’ attorney, Bursch, praised the majority opinion in an email Friday.

“Indiana is very pleased with the ruling. Prohibiting the transfer of aborted fetal body parts and tissue is a reasonable regulation of ethical research within the state, and we appreciate the Seventh Circuit’s point-by-point rejection of all the plaintiffs’ claims,” he wrote.

Attorneys for the university did not immediately respond to a request for comment.  

Last year, the Seventh Circuit struck down another provision of HEA 1337 that prohibited abortions motivated by the fetus’ sex, race or diagnosis of a disability.

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