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District court rules language in Indiana abortion statute void for vagueness

December 26, 2017

Parts of Indiana’s abortion laws have once again been struck down after a district court judge removed unconstitutionally vague language from a statutory prohibition on the sale, transfer, receipt and acquiring of aborted fetal tissue.

Chief Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana granted partial summary judgment to the trustees of Indiana University and its research faculty, including vice president for research Fred Cate, in a Friday ruling on their constitutional challenge to Indiana Code section 35-46-5-1.5 That section was codified through the 2016 House Enrolled Act 1337 and made it a Level 5 felony for a person to intentionally acquire, receive, sell or transfer aborted fetal tissue.

The IU plaintiffs sued the Marion and Monroe County prosecutors in May 2016, arguing the language of HEA 1337 violated five constitutional provisions: the dormant commerce, equal protection and due process clauses, the prohibition against regulatory takings and the First Amendment. All parties moved for summary judgment, and the chief judge ruled in favor of IU on the issue of due process protections. 

Specifically, Magnus-Stinson found two portions of HEA 1337 were void for vagueness. First, subsection (b) of I.C. 35-46-5-1.5 defines fetal tissue to include tissue, organs or “any other part” of an aborted fetus. Though the prosecutors tried to clarify that definition by asserting the language does not apply to fetal cells or cell lines not originally “part of an aborted fetus,” that definition does not help to resolve the statute’s underlying vagueness, the chief judge said.

“As to that representation’s clarity, as IU points out, this proposed definition of ‘any other part’ twice includes the term ‘part of,’” Magnus-Stinson wrote. “The definition is circular, at best, and does little to clarify the types of materials that are encompassed within the term’s reach.”

Similarly, the prohibition against acquiring, receiving or transferring aborted fetal tissue in subsection (d) is likewise vague, Magnus-Stinson said, because “a person of ordinary intelligence could not determine what constitutes a ‘transfer’,” acquiring or receipt. Further, such vagueness would require prosecutors to develop their own definitions, subjecting the statute to arbitrary and discriminatory enforcement.

Thus, the chief judge struck the language in question from I.C. 35-46-5-1.5, leaving only a prohibition on the sale of aborted fetal tissue, which can include tissue or organs.

However, HEA 1337’s vagueness also led the court to deny summary judgment to all parties on the issue of the Dormant Commerce Clause and a Fifth Amendment regulatory taking, because the “overall impact of all possibly relevant conduct is impossible for the Court to define or measure without being able to determine the parameters of the regulated conduct.”

The defendant prosecutors did find victory in Friday’s ruling when Magnus-Stinson granted their cross-motions for summary judgment on the equal protections and First Amendment claims.

Looking to the 14th Amendment equal protection issue, Magnus-Stinson said the defendants’ proffered interest in ensuring human tissue research is ethical is a legitimate governmental interest, and the statute is rationally related to that purpose.

“Of course, the Court must agree with IU that if this were indeed the legislature’s goal, this statute was neither the most direct nor the least restrictive means to accomplish it: it does not mention research at all, instead only regulating the movement of the fetal tissue encompassed by the statute,” she wrote. “But the rational basis inquiry does not require that a statute be the wisest, fairest, most logical or least restrictive means to any end.”

Finally, Magnus-Stinson ruled in favor of the prosecutors on IU’s claim that the statute infringed upon their First Amendment academic freedom rights, determining the school did not prove “the First Amendment prevents states from enacting statutes prohibiting conduct in which the University would like to engage, and then teach about.”

The chief judge ordered the magistrate judge to meet with the parties and determine whether final judgment can issue, or whether further proceedings in the case of The Trustees of Indiana University, et al. v. Prosecutor of Marion County, Indiana and Prosecutor of Monroe County, Indiana, 1:16-cv-01289, will be necessary.

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