Trustees of Indiana University, et al., Plaintiffs-Appellees, Cross-Appellants,
Terry Curry, Prosecuting Attorney of Marion County, Indiana, and Christopher Gaal, Prosecuting Attorney of Monroe County, Indiana, Defendants-Appellants, Cross-Appellees.
September 5, 2018
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division. No.
l:16-cv-01289-JMS-DML - Jane E. Magnus-Stinson, Chief Judge.
Easterbrook, Hamilton, and Scudder, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
Indiana "[a] person who intentionally acquires,
receives, sells, or transfers fetal tissue commits unlawful
transfer of fetal tissue, a Level 5 felony." Ind. Code
§35-46-5-1.5(d). A federal district court held that
several terms in this statute are unconstitutionally vague
and that it must be treated as if it read: "A person who
intentionally sells fetal tissue commits unlawful transfer of
fetal tissue, a Level 5 felony." 289 F.Supp.3d 905,
934-35 (S.D. Ind. 2018). The district court also held that a
definitional clause is invalid. As enacted,
§35-46-5-1.5(b) reads: "As used in this section,
'fetal tissue' includes tissue, organs, or any other
part of an aborted fetus." This must be treated as if it
read: "As used in this section, 'fetal tissue'
includes tissue or organs of an aborted fetus." The
district court thus 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.
case began when Indiana University and three of its faculty
members filed this suit, under 42 U.S.C. §1983, against
the state's prosecuting attorneys in two counties. They
asked the district court to enjoin the prosecutors from
attempting to enforce any part of §35-46-5-1.5.
According to the plaintiffs, the statute not only is
excessively vague but also violates the First Amendment by
blocking one kind of medical research, takes the
University's property without just compensation, violates
the Equal Protection Clause by distinguishing fetal tissue
produced by abortions from that produced by miscarriages, and
violates the dormant Commerce Clause by regulating the
interstate market in fetal tissue. Plaintiffs do not contend
that the statute imposes an undue burden on any woman who
seeks to have an abortion, nor would they have standing to
make such an argument. Instead the three faculty-member
plaintiffs contend that the statute interferes with medical
have recounted, the district court found four words or
phrases to be unconstitutionally vague. It rejected
plaintiffs' theories under the First Amendment and the
Equal Protection Clause of the Fourteenth Amendment. And it
did not come to a conclusion with respect to the Takings
Clause or the Commerce Clause, reasoning that because it
could not determine what the statute means, it could not
properly analyze it under either of those provisions. It then
entered a permanent injunction in plaintiffs' favor and
closed the case. Both sides have appealed. Plaintiffs want
the whole statute enjoined, while defendants want the
injunction vacated and the suit dismissed.
is an initial problem. Indiana University, which is part of
the State of Indiana, see Haynes v. Indiana
University, 902 F.3d 724, 731 (7th Cir. 2018), has sued
two prosecutors who carry out state powers. The two
defendants have been sued in their official capacities, which
means that they must be treated as the State of Indiana.
Will v. Michigan Department of State Police, 491
U.S. 58 (1989). There is considerable doubt that federal
courts are authorized to adjust grievances among different
parts of a state government. See, e.g., Illinois v.
Chicago, 137 F.3d 474 (7th Cir. 1998) (a state can't
sue part of itself); Arlington Heights v. Regional
Transportation Authority, 653 F.2d 1149, 1150-53 (7th
Cir. 1981) (part of a state can't sue the state);
Branson School District RE-82 v. Romer, 161 F.3d
619, 628 (10th Cir. 1998) (collecting cases). Cf. South
Bend v. South Bend Common Council, 865 F.3d 889 (7th
Cir. 2017) (a city can't sue a part of itself). The suit
is saved, however, by the fact that three faculty members are
plaintiffs. All three have standing to litigate in their
personal capacities, and with one exception (to which we
return) they present all of the complaint's legal
theories. We start with vagueness, the Due Process Clause
theory on which the district court based its injunction, and
then address the other four theories.
Constitution requires criminal statutes to have a core of
understandable meaning. See, e.g., Johnson v. United
States, 135 S.Ct. 2551 (2015); United States v.
Powell, 423 U.S. 87 (1975); Nash v. United
States, 229 U.S. 373 (1913). Some uncertainty at the
margins does not condemn a statute. It is therefore hard to
see what can be wrong with words such as
"acquires," which people use and understand in
normal life. A person "acquires" a car by buying it
or leasing it or receiving it as a gift from a parent or
spouse-or by stealing it. Even a protean word such as
"reasonable" has enough of a core to allow its use
in situations where rights to speak are at issue. See
Thomas v. Chicago Park District, 534 U.S. 316, 324
(2002). Words such as "acquire" are materially
(another protean legal word) more definite than
shows that uncertainty so pervasive that most of a law's
potential applications are impossible to evaluate may rule
out enforcement. But the district court did not deny that
each of the words "acquires", "receives",
and "transfers", and the phrase "any other
part", has a substantial, understandable core. Instead
the judge worried about the periphery.
"transfers." The judge thought it hard to know
whether a medical researcher "transfers" fetal
material by passing a pipette containing fetal tissue to
someone else at the same laboratory bench. 289 F.Supp.3d at
920. Or take the phrase "any other part." Although
this ensures that the statute covers every part of a
fetus, the judge thought it hard to say how things work at
the level of individual cells or strands of DNA. Suppose
someone in Washington state (from which much of Indiana
University's fetal tissue comes) extracts a few cells
from an aborted fetus and uses them to create a line of
stem-cell tissue, exemplars of which (dozens of generations
later) are transferred to a researcher in Indiana. Is
anything derived from fetal tissue included in the
phrase "any other part"? The judge did not see a
clear answer. Id. at 918-19. These and similar open
questions led the judge to deem the words and phrase
prosecutors did not help their defense by professing to see
answers to these and similar questions. They assured the
judge that of course stem cells derived from fetal
tissue are not "any other part" of a fetus. They
asserted that moving a pipette across a lab bench is of
course not a "transfer" of fetal tissue,
because "transfer" means "convey
ownership." That's implausible. Federal statutes
forbid the transfer of heroin and other contraband, see,
e.g., 21 U.S.C. §841(a)(1), and judges implementing such
laws do not condition their application on a change of
ownership; those laws apply to people who act as agents as
well as to principals. The prosecutors also asserted that
placental or umbilical cord tissue is of course not
"any other part" of a fetus. Maybe: The placenta is
an independent organ and so may be outside the statutory
scope, but the statute does not address the topic.
Prosecutors can't offer definitive interpretations of
criminal laws, and one prosecutor can't bind a successor
in office. More: Indiana has 90 other counties, whose
prosecutors may have different ideas about the statute's
scope. The district judge was right to say that, if the
prosecutors' assurances are all the plaintiffs have to go
on, they are at needless risk.
although prosecutorial assurances should not set anyone's
mind at rest, the legal system offers a way to work out the
uncertainties that lurk at every statute's periphery: the
judiciary. Resolving edge questions is a principal role of
the courts. If the district court's approach is correct,
then every time a court needs to decide a tough question
about just how far a statute reaches, it should declare the
law unconstitutional. That is fundamentally inconsistent with
the Supreme Court's approach, under which a core of
meaning is enough to reject a vagueness challenge, leaving to
future adjudication the inevitable questions at the statutory
federal district judge cannot definitively interpret Ind.
Code §35-46-5-1.5, but the state judiciary can do so.
Declaratory judgments are available in Indiana under Ind.
Trial Rule 57 and Ind. Code §34-14-1-1. Any medical
researcher can file a suit with the theme: "I want to do
X and fear that I will be prosecuted, so please give me a
declaratory judgment that X is lawful." Yet none of the
plaintiffs has filed such a suit seeking assurances about the
scope of §35-46-5-1.5. Instead of using a readily
available state-law remedy for unwelcome risk, they asked a
federal court to blot the law from the books. That's not
how uncertainty should be addressed.
held this already about uncertainty under Indiana law.
Indiana forbids judges, and candidates for judicial office,
from making any public commitment "inconsistent with the
impartial performance of the adjudicative duties of judicial
office". The scope for debate about the meaning of that
clause puts to shame any uncertainty about the meaning of
Ind. Code §35-46-5-1.5, but we held the language valid,
even when rights to speak are at stake-not because it is
clear, but because the state offers a process to resolve
debat- able issues. Bauer v. Shepard, 620 F.3d 704,
715-17 (7th Cir. 2010). We explained (id. at
Plaintiffs want us to deem the law vague by identifying
situations in which state officials might take an
untenably broad reading of the [language], and then
predicting that they will do so. It is far
preferable, however, and more respectful of our judicial
colleagues in Indiana, to assume that they will act sensibly
and resolve the open questions in a way that honors
candidates' rights under the first amendment.
When a statute is accompanied by [a] system that can flesh
out details, the due process clause permits those details to
be left to that system. Parts of the Hatch Act are every bit
as vague as the [language here], but in [Civil Service
Commission v. Letter Carriers, 413 U.S. 548 (1973)] the
Court held that problems of implementation could be tackled
by administrative adjudication. 413 U.S. at 580. Similarly,
in Parker v. Levy, 417 U.S. 733 (1974), the Court
held that an article of the Uniform Code of Military Justice
making it a court-martial offense to engage in "conduct
unbecoming an officer and a gentleman" is not
unconstitutionally vague, because military tribunals have
elaborated on what is "unbecoming" for an officer
and made it more specific than the unadorned words. The
National Labor Relations Act is full of vague terms [such as
"unfair labor practice"], and the National Labor
Relations Board has yet to make all of them concrete, but no
one supposes that the whole Act could be chucked out. The
Justices have been chary of holding laws unconstitutional
"on their face" precisely because they have
recognized that vagueness will be reduced through a process
equally true of Ind. Code §35-46-5-1.5.
Declaratory-judgment actions can resolve ambiguities with
limited (if any) risk to medical researchers.
thing the state judiciary might do-in addition to resolving
concrete disputes such as the coverage of cells derived from
fetal tissue-is read the word "intentionally" in
§35-46-5-1.5(d) to protect researchers who do not
subjective- ly understand that they are violating the law.
That is what the Supreme Court did in Screws v. United
States, 325 U.S. 91 (1945), to save what is now codified
as 18 U.S.C. §242, which one might classify as the
ultimately vague criminal statute. (It forbids any act under
color of law that deprives anyone of any constitutional
right.) This potential for risk reduction through
interpretation, plus the fact that all of the contested terms
have a substantial core of ascertainable meaning, leads us to
reject the district court's vagueness holding.
dissenting colleague calls our approach "a novel
variation on Pullman abstention" (below at 14),
but it is neither novel nor a form of abstention. It reflects
the Supreme Court's holdings in Letter Carriers,
Parker, and many other decisions, such as Rose v.
Locke, 423 U.S. 48 (1975), that when considering whether
statutory terms are too vague a federal court must take into
account how they have been interpreted and applied.
Johnson is an example. The Justices declared a
statute unconstitutionally vague only after this process of
interpretation had been used for more than 20 years without
curtailing uncertainty. For Indiana's fetal-tissue
statute, by contrast, the process has not even begun. Whether
the process of interpretation is administrative (as in
Letter Carriers and Bauer) or judicial (as
in Parker, Rose, and Johnson) does not
matter. What does matter is whether the process can answer
important questions about the statute's scope.
believe that, if they sue in federal court before the state
judiciary has had a chance to interpret state law, they can
ensure that the state never gets that chance. Akron v.
Akron Center for Reproductive Health, Inc., 462 U.S.
416, 451-52 (1983), used vagueness doctrine in that fashion
without citing Letter Carriers, Parker, or Rose.
Akron was overruled by Planned Parenthood of
Pennsylvania v. Casey, 505 U.S. 833 (1992), and we are
not aware of any other decision by the Supreme Court that has
used vagueness doctrine to prevent the state judiciary from
having even a chance to give the law a construction that will
produce adequate clarity.
arrive at the four theories that are the subjects of
parties agree that the statute does not burden a suspect
class or affect a fundamental right, so the rational-basis
standard applies to the equal-protection theory. The district
court held that ethical considerations support a distinction
between fetal tissue obtained from abortions and tissue
obtained from miscarriages. 289 F.Supp.3d at 931-33. There is
a moral debate about abortion and no equivalent debate about
miscarriages. The Supreme Court wrote in Washington v.
Glucksberg, 521 U.S. 702, 731 (1997), that "[t]he
State ... has an interest in protecting the integrity and
ethics of the medical profession." Cf. Cavel
International, Inc. v. Madigan, 500 F.3d 551 (7th Cir.
2007) (ethical considerations support a ban on slaughtering
horses for human consumption). Plaintiffs stress that under
Roe v. Wade, 410 U.S. 113, 158 (1974), and its
successors, a fetus is not a "person." See also
Planned Parenthood of Indiana and Kentucky, Inc. v.
Commissioner of Indiana State Department of Health, 888
F.3d 300, rehearing en banc denied, 2018 U.S. App. Lexis
17676 (7th Cir. June 25, 2018), petition for certiorari
pending, No. 18-483. But that does not eliminate the
possibility of serious debate about when, if at all, it is
ethical to perform medical experiments on aborted fetal
tissue. The rational-basis standard does not require much in
the way of justification, see FCC v. Beach
Communications, Inc., 508 U.S. 307, 314-15 (1993), and
we agree with the district court that the statute survives an
equal-protection challenge. Indiana's statute may or may
not be sensible-for even persons who find abortion immoral
must recognize that neurological research using fetal tissue
can save innocent lives-but choosing sides in an ethical
debate does not condemn a law.
First Amendment argument is a non-starter. The statute
regulates conduct, not speech. See Clark v. Community for
Creative Non-Violence, 468 U.S. 288 (1984). True,
plaintiffs want to use fetal tissue in research that could
lead to speech, in classrooms or research papers. But a
desire to obtain an input into speech does not
convert regulation of conduct into regulation of speech.
Surely plaintiffs do not think that researchers at Indiana
University are entitled to blow up a commercial airliner, or
administer dangerous pathogens to patients in the
University's hospital, just so that they can observe the
results and write down their findings. Nor do plaintiffs
think that they are entitled to steal pens, paper, and
computers from the local Office Depot so that they can write
articles at lower cost. Plaintiffs assert that the statute
casts "a pall of orthodoxy over the classroom", but
it does not. 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. See Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47
(2006) (Solomon Amendment does not regulate speech).
contend that Indiana's law violates the Commerce Clause
because much of the tissue they seek to use comes from other
states. Yet the law does not discriminate against interstate
commerce; it applies equally to fetal tissue from Indiana and
fetal tissue from Iowa, Illinois, or Indonesia. Nor does it
bear more heavily on interstate commerce as a practical
matter, the subject of Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970). We have held repeatedly that outright
bans on particular items do not offend the dormant Commerce
Clause. See, e.g., National Paint & Coatings
Association v. Chicago, 45 F.3d 1124 (7th Cir. 1995)
(spray paint); Park Pet Shop, Inc. v. Chicago, 872
F.3d 495 (7th Cir. 2017) (dogs from puppy mills). Plaintiffs
do not contend that Indiana's law concerns a subject on
which there is a "compelling need for national
uniformity in regulation." General Motors Corp. v.
Tracy, 519 U.S. 278, 298 n. 12 (1997).
the claim under the Takings Clause is confined to the
University itself. None of the three individual plaintiffs
contends that he has any property interest in particular
fetal tissue, so nothing has been taken from any of them. The
statute does render valueless any fetal tissue, derived from
abortions, owned by Indiana University. But as we observed
earlier, 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. See, e.g., Great Lakes Higher Education Corp.
v. Cavazos, 911 F.2d 10, 14-15 (7th Cir. 1990). Our
decision in Illinois Clean Energy Community Foundation v.
Filan, 392 F.3d 934 (7th Cir. 2004), does not hold
otherwise. The Illinois Clean Energy Community Foundation is
a charitable foundation funded by private donations.
Confiscation of its property is a taking in a way that a
state's decision about what to do with its own property
never could be.
lesser arguments have been considered but do not require
discussion. We conclude that the district court should have
entered judgment in defendants' favor. The injunction is
reversed, and the case is remanded for that purpose.
Hamilton, Circuit Judge, dissenting.
should affirm. The Indiana law making it a felony to acquire,
receive, sell, or transfer the "tissue, organs, or any
other part of an aborted fetus" is unconstitutionally
vague. As explained below, some unusual features of this law
and this lawsuit lead me to that conclusion: both the
State's lawyers and the authoring legislators have tried
to run away from the apparent meaning of the statutory
language. As a result, it's clear that the law does not
give fair notice of its scope, and it effectively abandons
the proper separation of powers by delegating critical policy
decisions to prosecutors and judges. I agree with my
colleagues, however, that plaintiffs cannot prevail on their
First Amendment, Equal Protection, and Commerce Clause
unusual features of this law, its enactment, and this lawsuit
mean that the district judge's reasoning does not
actually threaten to invalidate "big chunks of the legal
system." It was not the district judge who found it hard
to know what "transfer" means in this statute, nor
was the problem that the judge "did not see a clear
answer" as to what is meant by "any other
part." See ante at 4-5. If the district judge erred, it
was in taking the State of Indiana at its word that the
statutory text does not mean what it seems to say. The
subject of this litigation is not handwringing about the
"periphery" of the new law. The majority's
hypothesized "core of understandable meaning"-the
transfer or acquisition of fetal organs-addresses a factual
scenario that is not and was not ...