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Divided 7th Circuit lifts injunction against Indiana fetal-tissue research ban

March 15, 2019

An Indianapolis judge’s ruling that blocked an Indiana law effectively banning stem cell research derived from aborted fetal tissue was reversed by a divided 7th Circuit Court of Appeals panel Thursday.

The 2-1 decision is a defeat for Indiana University researchers challenging the ban. A dissenting judge questioned the state’s motivation and intent behind a law he said threatens IU research into potential treatments for Alzheimer’s disease and other disorders.

The majority opinion lifts an injunction on the state’s fetal-tissue ban that Indiana Southern District Chief Judge Jane Magnus-Stinson imposed in December 2017. Magnus-Stinson ruled the statute’s language prohibiting the sale, transfer, receipt and acquiring of aborted fetal tissue was unconstitutionally vague.

Indiana Code section 35-46-5-1.5, adopted in 2016 with then-Gov. Mike Pence’s signing of House Enrolled Act 1337, imposes a Level 5 felony for a person to intentionally to buy, sell or transfer the tissue, organs or any other part of an aborted fetus, the lawsuit said.

IU challenged the law, citing its potentially chilling effect on medical research, particularly involving stem cells.

But the 7th Circuit majority ruled Magnus-Stinson overreached in blocking the law from taking effect.

“A federal district court held that several terms in this statute are unconstitutionally vague,” Judge Frank Easterbrook wrote for the majority joined by Judge Michael Scudder. “… 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.”

Dissenting Judge David Hamilton wrote in a 21-page dissent that the inunction should be affirmed, agreeing with Magnus-Stinson that the law is unconstitutionally vague because it failed to clearly put researchers on notice of what scientific activities could put them in criminal jeopardy, and because the state has offered some assurances that prosecuting researchers was not the intent of the law. Hamilton wrote the plain language of the statute threatens research at IU, which houses the National Cell Repository for Alzheimer’s Disease, one of 32 centers studying the disease that receives funding from the National Institutes of Health.

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