918 F.3d 537
7th Cir.2019Background
- Indiana enacted Ind. Code § 35-46-5-1.5 making it a Level 5 felony to "intentionally acquire, receive, sell, or transfer fetal tissue," and defining "fetal tissue" to "include tissue, organs, or any other part of an aborted fetus."
- Indiana University and three faculty sued state prosecutors under 42 U.S.C. § 1983 seeking a permanent injunction, arguing vagueness, First Amendment, Takings, Equal Protection, and dormant Commerce Clause violations; district court enjoined enforcement on vagueness grounds and struck a definitional clause.
- District court held the words "acquires," "receives," "transfers," and the phrase "any other part" were unconstitutionally vague; it rejected plaintiffs' First Amendment and Equal Protection claims and did not resolve Takings or Commerce issues.
- The Seventh Circuit majority (Easterbrook) reversed the injunction, holding the statute has a sufficient core meaning, that state courts and ordinary adjudication can resolve edge questions, and rejecting vagueness and other federal constitutional claims except noting the University’s takings theory lacked a proper plaintiff basis.
- The dissent (Hamilton) would affirm: it views the statutory text and the State’s shifting defenses as creating core ambiguity (especially about cultured cell lines and in-lab transfers), warns against delegating legislative choices to prosecutors/judges, and finds the record shows real chilling effect on research.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness (Due Process) | Statute fails to give fair notice; key terms ("acquires/receives/transfers" and "any other part") are indeterminate as applied to cultured cells and routine lab movements. | The terms have an understandable core; prosecutorial assurances and later interpretation can cabin scope; state courts can resolve edge cases. | Reversed injunction: statute not facially void for vagueness because it has a core meaning and state adjudication can clarify margins. |
| Equal Protection | Distinguishing fetal tissue from abortions vs miscarriages lacks justification. | Ethical and moral distinctions about abortion provide rational-basis justification. | Affirmed district court’s rejection of equal-protection challenge; statute survives rational-basis review. |
| First Amendment | Law chills research-speech nexus; impairs academic inquiry and teaching. | Statute regulates conduct (use/acquisition of tissue), not speech; incidental effects on research do not convert it to a speech ban. | Rejected plaintiff First Amendment claim; regulation of conduct upheld. |
| Dormant Commerce Clause | Law burdens out-of-state tissue sourcing and research collaboration. | Law is nondiscriminatory on its face and in effect; outright bans on items do not necessarily violate dormant Commerce Clause. | Rejected Commerce Clause challenge; statute does not discriminate against interstate commerce. |
| Takings (University) | University says the law renders abortion-derived fetal tissue it owns valueless (taking without compensation). | University is part of the State; state decisions about use of state property are legislative prerogatives; individual plaintiffs lack property interest. | Court declined relief for University; concluded University as an arm of the state cannot prevail here on takings claim in this posture. |
Key Cases Cited
- Screws v. United States, 325 U.S. 91 (1945) (interpretation can limit otherwise vague criminal statutes)
- Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973) (administrative adjudication can cure statutory vagueness at margins)
- Parker v. Levy, 417 U.S. 733 (1974) (vague military-code terms upheld given adjudicative process)
- Rose v. Locke, 423 U.S. 48 (1975) (upholding criminal statute where interpretive history limited vagueness concerns)
- Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983) (struck vague criminal requirement re: fetal remains disposal)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (abortion doctrine and limits on prior vagueness approaches)
- FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) (rational-basis review standard)
- Rumsfeld v. FAIR, 547 U.S. 47 (2006) (distinguishing regulation of conduct from regulation of speech)
- Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010) (state processes can reduce vagueness concerns via advisory opinions and adjudication)