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The Trustees of Indiana University v. Prosecutor of Marion County Indiana

United States District Court, S.D. Indiana, Indianapolis Division

December 22, 2017

PROSECUTOR OF MARION COUNTY INDIANA in his official capacity, PROSECUTOR OF MONROE COUNTY INDIANA in his official capacity, Defendants.


          Hon. Jane Magnus-Stinson, Chief Judge

         This case is the latest in a series of challenges to various statutory provisions that were enacted as part of House Enrolled Act 1337. This Act codified a number of abortion-related provisions, some civil and some criminal. In this action, Plaintiffs the Trustees of Indiana University, Fred Cate, Dr. Bruce Lamb, and Dr. Debomoy Lahiri (collectively "IU") challenge a provision that criminalizes the acquisition, receipt, sale, and transfer of aborted fetal tissue. RJ moves for summary judgment, arguing that the provision violates the United States and Indiana Constitutions, based on five different constitutional challenges. Defendants, the prosecutors of Marion and Monroe counties, cross-move for summary judgment, contending that the statute does not offend the Constitution. Also pending before the Court is Defendants' Motion for Oral Argument regarding the cross-motions for summary judgment. [Filing No. 80.] For the reasons described below, the Court concludes that the provision violates the Due Process Clause of the United States Constitution. It therefore grants in part RJ's Motion for Summary Judgment. [Filing No. 77.1 Having concluded that the Court can resolve the summary judgment motions based on the parties' briefing, the Court denies Defendants' Motion for Oral Argument. [Filing No. 80.]



         Indiana University, its School of Medicine, and various Research Institutes housed at IU conduct scientific research into Alzheimer's disease and other disorders.[1] [Filing No. 77-3 at 6; Filing No. 77-4 at 4-5.1 IU's Alzheimer's Disease Center ("the Center") receives funding from the National Institutes of Health ("NIH") to advance research into Alzheimer's disease. [Filing No. 77-3 at 20.1 The Center is supported by and overlaps with IU's Stark Neurosciences Research Institute ("the Stark Institute"), which is an interdepartmental research institute with ongoing research into Alzheimer's disease and other disorders. [Filing No. 77-4 at 4-5; Filing No. 77-4 at 22.] Plaintiff Bruce Lamb is the Director of the Stark Institute. [Filing No. 77-4 at 4-5; Filing No. 77-4 at 22.1 IU's School of Medicine also houses the National Cell Repository for Alzheimer's disease. [Filing No. 77-3 at 12.1 RJ also hosts an Nffl-funded Vector Production Facility ("VPF"), which creates cell line vectors. [Filing No. 77-2 at 2.1

         Plaintiff Debomoy Lahiri is a tenured professor in the RJ School of Medicine's Department of Psychiatry, a member of the Stark Institute, and an executive committee member of the Center. [Filing No. 77-5 at 1; Filing No. 77-6 at 25; Filing No. 77-1 at 6.1 Dr. Lahiri conducts research on brain disorders, including dementia and Alzheimer's disease. [Filing No. 77-5 at 2.1 He is the Editor-in-Chief of the Journal of Current Alzheimer's Research, [Filing No. 77-5 at 31, and he has authored or contributed to over 300 publications, [Filing No. 77-5 at 21. Dr. Lahiri began using fetal tissue in his research on or about July 14, 2011. [Filing No. 77-5 at 6; Filing No. 77-6 at 2- 3.] He uses fetal tissue because it contains all of the components of the fetal brain, such as neurons, astrocytes, microglia, and blood vessels, and because healthy fetal brain tissue serves as a "control" to understand how a diseased brain differs from a healthy one. [Filing No. 77-6 at 17; Filing No. 77-8 at 11; Filing No. 77-5 at 8.]

         IU obtains fetal tissue for Dr. Lahiri's research from the Birth Defects Research Lab ("BDRL") at the University of Washington, and it has received approximately 25 shipments of fetal tissue from BDRL. fFiling No. 77-5 at 4; Filing No. 77-5 at 14; Filing No. 77-6 at 4.1 IU pays BDRL $200 per shipment to cover the shipping and handling costs associated with obtaining the tissue; there are no additional costs. [Filing No. 77-5 at 15; Filing No. 79-2 at 17.1 BDRL does not provide intact organs-instead, it sends tissue from organs, such as brains, livers, and kidneys. [Filing No. 77-5 at 3.1 The amount of tissue per shipment that RJ receives is small enough to be contained within roughly two teaspoons of liquid media. [Filing No. 77-5 at 15.]

         After receiving a shipment of tissue from BDRL, Dr. Lahiri cuts the tissue into very small pieces. [Filing No. 77-6 at 5.1 To that tissue, he adds an enzyme that dissociates, or breaks apart, the tissue's cells. [Filing No. 77-6 at 5.1 He then places that mixture into a centrifuge, in order to separate the cells from "debris." [Filing No. 77-6 at 5-6.1 Debris includes cells that did not successfully dissociate, as well materials such as cell membranes and tissue walls. [Filing No. 77-6 at 5-6.1 The debris is discarded, and the remaining cells are classified and their viability determined. [Filing No. 77-6 at 6.1 The viable cells of the desired types are plated in dishes containing different types of media, where they grow and divide for days or weeks. [Filing No. 77-6 at 6.1 Dr. Lahiri then performs his research using those cells. [Filing No. 77-6 at 7.1 Dr. Lahiri stores the molecules derived from his cultures in a freezer for reuse. [Filing No. 77-5 at 18.]

         Researchers at IU also perform research using "cell lines" that have been derived from fetal tissue. [Filing No. 77-2 at 2] When cells are plated, they may continue to grow and divide over a period of time. Cells multiply by division, and when a cell divides, it gives rise to two "daughter" cells. [Filing No. 77-8 at 7.] Those cells continue to grow and divide in the plates in which they have been placed, until they become "confluent, " or evenly coat the surface of the dish such that no more cells can grow. [Filing No. 77-8 at 6.] At that point, the cells are transferred to a bigger dish or multiple dishes (or half of the cells are discarded) in order to create more room for the cells to continue to divide. [Filing No. 77-8 at 6.] This transfer process is referred to as a "passage, " and researchers track the number of passages that a group of cells has undergone. [Filing No. 77-8 at 6.] In each passage, some cells will fail to divide, and will proceed intact to the next passage. [Filing No. 77-8 at 22.] Cell lines within the early series of passages are commonly referred to as "primary cell lines." [Filing No. 77-8 at 6.]

         Some cells continue to divide after multiple passages, and if they are continuously cultivated, those cells eventually become known as "established" or "immortalized" cell lines, which can "be passaged more or less indefinitely." [Filing No. 77-8 at 5-6.] Established cell lines can be purchased from commercial sources or acquired from not-for-profit cell line banks, and they are used for a variety of purposes and passed from lab to lab. [Filing No. 77-8 at 5; Filing No. 77-7 at 4.] A cell line known as F£EK 293 is an example of such a commercially available, established cell line, and is used by researchers at IU. [Filing No. 77-8 at 5; Filing No. 77-1 at 15.] HEK 293 originated in 1972, and the owner of that cell line represents that it was derived from an aborted fetus. [Filing No. 77-1 at 5-6.] It is used for a variety of research purposes, and is one of the most widely used cell lines in the world. [Filing No. 77-1 at 6; Filing No. 77-1 at 15.]

         Researchers at IU also extract, use, and store components of cells-known as biologies or biologicals-such as DNA, RNA, and proteins. [Filing No. 77-3 at 8-9.] Many of those materials are stored indefinitely in freezers on IU's campuses. [Filing No. 77-4 at 9.]

         On March 24, 2016, House Enrolled Act 1337 was signed into law, becoming effective on July 1, 2016. Among other provisions, that Act codified a subsection entitled "Unlawful transfer of fetal tissue; unlawful collection of fetal tissue." Ind. Code § 35-46-5-1.5. That section, in its entirety, reads as follows:

(a) As used in this section, 'aborted' means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus. The term includes abortions by surgical procedures and by abortion inducing drugs.
(b) As used in this section, 'fetal tissue' includes tissue, organs, or any other part of an aborted fetus.
(c) This section does not apply to the proper medical disposal of fetal tissue.
(d) A person who intentionally acquires, receives, sells, or transfers fetal tissue commits unlawful transfer of fetal tissue, a Level 5 felony.
(e) A person may not alter the timing, method, or procedure used to terminate a pregnancy for the purpose of obtaining or collecting fetal tissue. A person who violates this subsection commits the unlawful collection of fetal tissue, a Level 5 felony.

Ind. Code §35-46-5-1.5. Indiana Code Section 35-50-2-6(b) provides that "[a] person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years. In addition, the person may be fined not more than ten thousand dollars ($10, 000)."

         On May 25, 2016, IU filed a Complaint in this Court against the prosecutors of Marion and Monroe counties, alleging that Indiana Code § 35-46-5-1.5 violates the constitutions of the United States and the State of Indiana. [Filing No. 1.1 IU filed the operative Second Amended Complaint on September 13, 2016. [Filing No. 47.1 The Court granted the parties' stipulated dismissal of certain Indiana state constitutional claims, leaving one state and five federal constitutional claims remaining for resolution. [Filing No. 85.1 IU moves for summary judgment, arguing that Ind. Code § 35-46-5-1.5: (1) violates the Dormant Commerce Clause of the United States Constitution; (2) violates the Equal Protection Clause of the Fourteenth Amendment (and the Equal Privileges and Immunities Clause of the Indiana State Constitution); (3) violates the Due Process Clause of the Fourteenth Amendment in that it is impermissibly vague; (4) constitutes an unconstitutional regulatory taking in violation of the Fifth Amendment; and (5) violates the First Amendment by abridging IU's academic freedom. [Filing No. 78 at 10.] Defendants cross-move for summary judgment, arguing that the statute satisfies all constitutional demands. [Filing No. 81 at 13-14.] Those Motions are now fully briefed and ripe for the Court's review.


         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. FordMotor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, " Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         "The existence of cross-motions for summary judgment does not. . . imply that there are no genuine issues of material fact." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Eng'rs, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, "[p]arties have different burdens of proof with respect to particular facts, different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial." Id. at 648.



         IU raises five distinct constitutional challenges to Ind. Code § 35-46-5-1.5, each of which Defendants oppose. The Court reorders and addresses each challenge.

         A. Due Process Clause - Void for Vagueness

         1. Due Process and Void-for-Vagueness Challenges

         The Fifth Amendment to the United States Constitution provides that "[n]o person deprived of life, liberty, or property, without due process of law." U.S. Const, amend. V. Supreme Court precedent has long established "that the Government violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States, 135 S.Ct. 2551, 2556-57 (2015) (citation omitted). "The prohibition of vagueness in criminal statutes is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute that flouts it violates the first essential of due process." Id. (internal quotation and citation omitted).

         To satisfy the demands of due process, "a penal statute [must] define the criminal offense

         (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and

         (2) in a manner that does not encourage arbitrary and discriminatory enforcement." Shilling v. United States, 561 U.S. 358, 402-03 (2010) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). "The Constitution tolerates a lesser degree of vagueness in enactments with criminal rather than civil penalties because the consequences of imprecision are more severe." Karlin v. Foust, 188 F.3d 446, 458 (7th Cir. 1999) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982)).

         IU argues that Ind. Code § 35-46-5-1.5 violates both aspects of the void-for-vagueness inquiry, (though violation of one is sufficient to establish a statute's vagueness), by both failing to define the criminal offense with sufficient definiteness and by failing to define the offense in a manner that does not encourage arbitrary and discriminatory enforcement. The Court considers each in turn.

         2. What Conduct is Prohibited

         IU contends that the statute is unconstitutionally vague because it "does not define the criminalized conduct with sufficient definiteness that ordinary people can understand what conduct is prohibited." [Filing No. 78 at 41.] IU takes issue both with the statutory provisions regarding what material is subject to the statute's reach, [Filing No. 78 at 42], and with those provisions regarding the specific activities that are prohibited, [Filing No. 78 at 41 ]. Defendants respond that the statute is sufficiently definite to provide adequate notice as to what conduct is prohibited. [Filing No. 81 at 44.1

         a. "Any other part"

         Subsection (b) of the statute specifies that "[a]s used in this section, 'fetal tissue' includes tissue, organs, or any other part of an aborted fetus." Ind. Code § 35-46-5-1.5(b) (emphasis added). IU contends that the statutory phrase "any other part" is unconstitutionally vague, "because it provides minimal guidance as to what material is subject to the Statute's prohibitions." [Filing No. 78 at 42.] IU argues that persons of ordinary intelligence "will struggle to understand what is included in the universe of items deemed ‘any part of' a fetus, such as the placenta, umbilical cord, cells, biologicals derived from cells, RNA, DNA, proteins, and so on.” [Filing No. 78 at 42.] Defendants respond that (1) the parties and their experts agree as to what materials “any other part” includes, [Filing No. 81 at 47]; and (2) IU is adequately on notice as to what conduct is prohibited, [Filing No. 90 at 9].

         First, Defendants argue that the statute is not vague because the parties and their experts agree as to what materials “any other part” encompasses-in other words, the parties and their experts agree as to the meaning of the statutory term. But the interpretation of a statute is a question of law that is appropriately in front of the Court to decide. See, e.g., U.S. v. Rosenbohm, 564 F.3d 820, 822 (7th Cir. 2009) (“The interpretation of a statute is a question of law.”); United States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008) (concluding that, regarding the admission of expert testimony, “[t]he ‘expert' would have testified about the meaning of the statute and regulations. That's a subject for the court, not for testimonial experts. The only legal expert in a federal courtroom is the judge.”) Neither the parties' agreement, nor any expert opinions, are determinative of the meaning of the statute.

         To the extent that Defendants argue that the experts' or parties' agreement constitutes persuasive evidence as to the statute's clarity (or lack of vagueness), Defendants are incorrect in asserting that the parties or their experts are in agreement. Defendants contend that the “undisputed evidence is that the smallest distinguishable part of a fetus is a cell, ” presumably implying, though not explicitly stating, that the statutory term “any other part” applies only to materials that are cells, or of a size larger than cells. [Filing No. 90 at 18.] IU, however, has asserted with evidentiary support that the term “part of” does not have a discernable 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.

         Among other relevant points that are discussed further below, IU submitted the following testimony, for example, given by Dr. Larry Goldstein:

Q: So ‘part of' you find vague?
A: Yeah, I mean, I think that's a difficult-again, it's not a scientific term that has any meaning…”

         [Filing No. 77-8 at 29-30.] And it submitted the following testimony given by Dr. Lamb:

Q: And the discussion that the statute is prompting all of us to have with these words ‘part of' in it, is that a designation that science uses?
A: No. ‘Part of' is not a very precise scientific term. …It's certainly not a scientific designation. So when I read ‘part of an aborted fetus, ' I just assume that anything that is part of the fetus or was derived from the fetus is being referred to by that language.

         [Filing No. 77-4 at 15.] Nowhere in its briefing does IU agree with Defendants' assertion that the term “any other part” includes only cells and materials larger than cells.

         The Court therefore turns to the question of whether the statutory term “any other part” provides sufficient definition such that a person of ordinary intelligence could understand what conduct is prohibited. See Skilling, 561 U.S. at 402-03. The subsection in which this term appears reads as follows: “[a]s used in this section, ‘fetal tissue' includes tissue, organs, or any other part of an aborted fetus.” Ind. Code § 35-46-5-1.5(b). The statute itself does not define the term “any other part.” The Court begins, then, by assessing the plain text of the statute, as suggested by Defendants. In defining the term fetal tissue, the statute lists a series of covered materials: tissue, organs, and “any other part.” The statute's listing of tissue and organs indicates that materials beyond an intact fetus are covered by the statute-if they weren't, specifically listing tissue and organs would be unnecessary. Therefore, the statute applies to tissues and organs, whether or not they are situated within an intact fetus. The same, then, is true of the catch-all final item in the series-the “any other part” term. This means that “any other part” must include (1) materials that are not either tissues or organs, and that (2) may exist outside of an intact fetus. This is the entirety of plain-text meaning the Court can discern from the statute.

         IU argues that this definition is not sufficient to put individuals on notice as to what behavior is prohibited. It points to a variety of materials that it uses in its research activities as examples of the types of materials that the statutory language could encompass, but does not define, such as: placentas, umbilical cords, cells, cell lines, and biologicals derived from cells, including RNA, DNA, and proteins. [Filing No. 78 at 42.] IU also argues that Defendants' own representations regarding what materials are encompassed by the term “any other part” illustrate the problematic vagueness of the statutory provision. [Filing No. 84 at 47-50.] IU argues that Defendants' representations are both facially vague and inconsistent with one another. [Filing No. 84 at 47-50.]

         For example, in their Statement of Defenses, Defendants made the following representations about the “conduct engaged in by ...

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