United States District Court, S.D. Indiana, Indianapolis Division
THE TRUSTEES OF INDIANA UNIVERSITY, FRED H. CATE and its research faculty, DR. BRUCE LAMB, and DR. DEBOMOY LAHIRI, Plaintiffs,
PROSECUTOR OF MARION COUNTY INDIANA in his official capacity, PROSECUTOR OF MONROE COUNTY INDIANA in his official capacity, Defendants.
AMENDED ORDER 
JANE MAGNTTS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT
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. IU moves for summary
judgment, arguing that the provision violates the United
States Constitution, 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 IU's Motion for Summary Judgment. [Filing No.
77.] 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.]
University, its School of Medicine, and various Research
Institutes housed at IU conduct scientific research into
Alzheimer's disease and other disorders. [Filing No.
77-3 at 6; Filing No. 77-4 at 4-5.] 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.] 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.] IU's School of Medicine also houses the
National Cell Repository for Alzheimer's disease.
[Filing No. 77-3 at 12.] IU also hosts an NIH-funded
Vector Production Facility (“VPF”),
which creates cell line vectors. [Filing No. 77-2 at
Debomoy Lahiri is a tenured professor in the IU 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.] Dr. Lahiri
conducts research on brain disorders, including dementia and
Alzheimer's disease. [Filing No. 77-5 at 2.] He
is the Editor-in-Chief of the Journal of Current
Alzheimer's Research, [Filing No. 77-5 at 3],
and he has authored or contributed to over 300 publications,
[Filing No. 77-5 at 2]. 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
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.
[Filing No. 77-5 at 4; Filing No. 77-5 at
14; Filing No. 77-6 at 4.] 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.] BDRL does not provide intact organs-instead, it
sends tissue from organs, such as brains, livers, and
kidneys. [Filing No. 77-5 at 3.] The amount of
tissue per shipment that IU receives is small enough to be
contained within roughly two teaspoons of liquid media.
[Filing No. 77-5 at 15.]
receiving a shipment of tissue from BDRL, Dr. Lahiri cuts the
tissue into very small pieces. [Filing No. 77-6 at
5.] To that tissue, he adds an enzyme that dissociates,
or breaks apart, the tissue's cells. [Filing No. 77-6
at 5.] He then places that mixture into a centrifuge, in
order to separate the cells from “debris.”
[Filing No. 77-6 at 5-6.] 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.] The debris is discarded, and the remaining cells
are classified and their viability determined. [Filing
No. 77-6 at 6.] 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.] Dr. Lahiri then performs his research using
those cells. [Filing No. 77-6 at 7.] Dr. Lahiri
stores the molecules derived from his cultures in a freezer
for reuse. [Filing No. 77-5 at 18.]
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.]
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 HEK 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.]
at IU also extract, use, and store components of cells-known
as biologics 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.]
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
(b) As used in this section, ‘fetal tissue'
includes tissue, organs, or any other part of an aborted
(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).”
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.] IU filed the operative Second
Amended Complaint on September 13, 2016. [Filing No.
47.] The Court granted the parties' stipulated
dismissal of the Indiana state constitutional claims, leaving
five federal constitutional claims remaining for resolution.
[Filing No. 85.] 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; (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
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).
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. Ford Motor
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).
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 fact-finder
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).
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.
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.
Due Process Clause - Void for Vagueness
Due Process and Void-for-Vagueness Challenges
Fifth Amendment to the United States Constitution provides
that “[n]o person shall…be 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).
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.” Skilling
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
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.
What Conduct is Prohibited
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.]
“Any other part”
(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].
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.
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.
other relevant points that are discussed further below, IU
submitted the following testimony, for example, given by Dr.
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
[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.
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.
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
example, in their Statement of Defenses, Defendants made the
following representations about the “conduct engaged in
by Plaintiffs which is not prohibited by the Statute”:
1. The language "any other part of an aborted
fetus" in Section 1.5(b) of the Statute does not ...