In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18‐1146, 18‐1247 & 18‐1308
TRUSTEES OF INDIANA UNIVERSITY, et al.,
Plaintiffs‐Appellees, Cross‐Appellants,
v.
TERRY CURRY, Prosecuting Attorney of Marion County, Indi‐
ana, and CHRISTOPHER GAAL, Prosecuting Attorney of Mon‐
roe County, Indiana,
Defendants‐Appellants, Cross‐Appellees.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16‐cv‐01289‐JMS‐DML — Jane E. Magnus‐Stinson, Chief Judge.
____________________
ARGUED SEPTEMBER 5, 2018 — DECIDED MARCH 14, 2019
____________________
Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit
Judges.
EASTERBROOK, Circuit Judge. In 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
2 Nos. 18‐1146, 18‐1247 & 18‐1308
several terms in this statute are unconstitutionally vague and
that it must be treated as if it read: “A person who intention‐
ally sells fetal tissue commits unlawful transfer of fetal tis‐
sue, 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 or‐
gans 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, reg‐
ulations, and judicial opinions.
This 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 Com‐
merce Clause by regulating the interstate market in fetal tis‐
sue. Plaintiffs do not contend that the statute imposes an un‐
due 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 scholarship.
Nos. 18‐1146, 18‐1247 & 18‐1308 3
As we 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 injunc‐
tion vacated and the suit dismissed.
Justiciability 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 consid‐
erable 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 Transpor‐
tation 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.
4 Nos. 18‐1146, 18‐1247 & 18‐1308
We start with vagueness, the Due Process Clause theory
on which the district court based its injunction, and then ad‐
dress the other four theories.
The 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 uncer‐
tainty at the margins does not condemn a statute. It is there‐
fore hard to see what can be wrong with words such as “ac‐
quires,” 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 le‐
gal word) more definite than “reasonable.”
Johnson 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, under‐
standable core. Instead the judge worried about the periph‐
ery.
Take “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
Nos. 18‐1146, 18‐1247 & 18‐1308 5
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 Indi‐
ana. Is anything derived from fetal tissue included in the
phrase “any other part”? The judge did not see a clear an‐
swer. Id. at 918–19. These and similar open questions led the
judge to deem the words and phrase unconstitutional.
The two prosecutors did not help their defense by pro‐
fessing 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 “trans‐
fer” of fetal tissue, because “transfer” means “convey own‐
ership.” That’s implausible. Federal statutes forbid the trans‐
fer of heroin and other contraband, see, e.g., 21 U.S.C.
§841(a)(1), and judges implementing such laws do not condi‐
tion 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 top‐
ic. Prosecutors can’t offer definitive interpretations of crimi‐
nal 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.
6 Nos. 18‐1146, 18‐1247 & 18‐1308
Yet although prosecutorial assurances should not set an‐
yone’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 un‐
constitutional. 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 margin.
A federal district judge cannot definitively interpret Ind.
Code §35‐46‐5‐1.5, but the state judiciary can do so. Declara‐
tory 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.
We have held this already about uncertainty under Indi‐
ana 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‐
Nos. 18‐1146, 18‐1247 & 18‐1308 7
able issues. Bauer v. Shepard, 620 F.3d 704, 715–17 (7th Cir.
2010). We explained (id. at 716–17):
Plaintiffs want us to deem the law vague by identifying situa‐
tions in which state officials might take an untenably broad read‐
ing 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 implementa‐
tion 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 mak‐
ing it a court‐martial offense to engage in “conduct unbecoming
an officer and a gentleman” is not unconstitutionally vague, be‐
cause military tribunals have elaborated on what is “unbecom‐
ing” 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 Rela‐
tions 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 of interpretation.
This is equally true of Ind. Code §35‐46‐5‐1.5. Declaratory‐
judgment actions can resolve ambiguities with limited (if
any) risk to medical researchers.
One thing the state judiciary might do—in addition to re‐
solving concrete disputes such as the coverage of cells de‐
rived from fetal tissue—is read the word “intentionally” in
§35‐46‐5‐1.5(d) to protect researchers who do not subjective‐
8 Nos. 18‐1146, 18‐1247 & 18‐1308
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.
Our dissenting colleague calls our approach “a novel var‐
iation 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 pro‐
cess 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 an‐
swer important questions about the statute’s scope.
Plaintiffs 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 cit‐
ing Letter Carriers, Parker, or Rose. Akron was overruled by
Nos. 18‐1146, 18‐1247 & 18‐1308 9
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.
Thus we arrive at the four theories that are the subjects of
plaintiffs’ cross‐appeal.
The parties agree that the statute does not burden a sus‐
pect 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 ob‐
tained 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 medi‐
cal 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 In‐
diana 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
10 Nos. 18‐1146, 18‐1247 & 18‐1308
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 de‐
bate does not condemn a law.
The 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 re‐
searchers 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 ob‐
serve 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).
Plaintiffs contend that Indiana’s law violates the Com‐
merce Clause because much of the tissue they seek to use
comes from other states. Yet the law does not discriminate
Nos. 18‐1146, 18‐1247 & 18‐1308 11
against interstate commerce; it applies equally to fetal tissue
from Indiana and fetal tissue from Iowa, Illinois, or Indone‐
sia. 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. Chi‐
cago, 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).
Finally, 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 Com‐
munity 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 do‐
nations. 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.
12 Nos. 18‐1146, 18‐1247 & 18‐1308
Several lesser arguments have been considered but do
not require discussion. We conclude that the district court
should have entered judgment in defendants’ favor. The in‐
junction is reversed, and the case is remanded for that pur‐
pose.
Nos. 18‐1146, 18‐1247 & 18‐1308 13
HAMILTON, Circuit Judge, dissenting. We 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 legis‐
lators 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 de‐
cisions to prosecutors and judges. I agree with my colleagues,
however, that plaintiffs cannot prevail on their First Amend‐
ment, Equal Protection, and Commerce Clause challenges.
The unusual features of this law, its enactment, and this
lawsuit mean that the district judge’s reasoning does not ac‐
tually 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 litiga‐
tion 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—ad‐
dresses a factual scenario that is not and was not actually hap‐
pening. The new law is relevant only to practices as to which
its application seems, based on the State’s defense, unforeseen
and indeterminate.
This case fits comfortably within the majority’s descrip‐
tion of what Johnson v. United States, 135 S. Ct. 2551 (2015)
14 Nos. 18‐1146, 18‐1247 & 18‐1308
teaches: “that uncertainty so pervasive that most of a law’s
potential applications are impossible to evaluate may rule out
enforcement.” Ante at 4. Instead of affirming, however, the
majority proposes a novel variation on Pullman abstention in
which the federal courts direct plaintiffs who reasonably fear
prosecution under a vague law to file a series of declaratory
judgment cases in the state courts.
Plaintiffs should not have to take such extraordinary
measures to determine the scope of a criminal law. Legisla‐
tures must draft criminal statutes so that ordinary people
have fair notice of what acts are criminal. Skilling v. United
States, 561 U.S. 358, 402–03 (2010); United States v. Sylla, 790
F.3d 772, 774–75 (7th Cir. 2015). That does not mean that the
correct application of even a criminal law must be free from
doubt in all cases. There will often be, perhaps will always be,
a periphery where there is room for disagreement and inter‐
pretation. That possibility does not mean that a law is void for
vagueness, particularly as applied to the core of matters
clearly covered by the statute.
Still, there are limits. Fair notice of what is prohibited is an
essential element of due process and the rule of law. Vague
laws “can invite the exercise of arbitrary power … by leaving
the people in the dark about what the law demands and al‐
lowing prosecutors and courts to make it up.” Sessions v. Di‐
maya, 138 S. Ct. 1204, 1223–24 (2018) (Gorsuch, J., concurring);
see also Marinello v. United States, 138 S. Ct. 1101,1108 (2018)
(“to rely upon prosecutorial discretion to narrow the other‐
wise wide‐ranging scope of a criminal statute’s highly ab‐
stract general statutory language places great power in the
hands of the prosecutor”).
Nos. 18‐1146, 18‐1247 & 18‐1308 15
Vagueness doctrine is also built on the separation of pow‐
ers. Legislators “may not ‘abdicate their responsibilities for
setting the standards of the criminal law.’” Dimaya, 138 S. Ct.
at 1227 (Gorsuch, J. concurring), quoting Smith v. Goguen, 415
U.S. 566, 575 (1974). Vague laws transfer legislative power to
courts and police and prosecutors, where such power most
emphatically does not belong. Id. at 1228.
The unusual record here shows just such a legislative ab‐
dication. As a result, scientists engaged in potentially invalu‐
able medical research risk criminal prosecution based on
vague statutory language that leaves the hard choices to pros‐
ecutors and judges. “Under the Constitution, the adoption of
new laws restricting liberty is supposed to be a hard business,
the product of an open and public debate among a large and
diverse number of elected representatives. Allowing the leg‐
islature to hand off the job of lawmaking risks substituting
this design for one where legislation is made easy, with a
mere handful of unelected judges and prosecutors free to
‘condem[n] all that [they] personally disapprove and for no
better reason than [they] disapprove it.’” Dimaya, 138 S. Ct. at
1228 (Gorsuch, J., concurring), quoting Jordan v. De George, 341
U.S. 223, 242 (1951) (Jackson, J., dissenting).
To explain these issues and why they matter, I first pro‐
vide some background on the plaintiffs and their research on
Alzheimer’s disease. I then explain the vagueness problems
in terms of the statutory language, the unusual course of this
litigation, and the legislative process that led to the chal‐
lenged law. I conclude with the university’s takings claim.
Plaintiffs and Their Alzheimer’s Research: Few diseases are as
frightening as Alzheimer’s disease, a progressive disease that
causes brain cells to waste away and die. The symptoms can
16 Nos. 18‐1146, 18‐1247 & 18‐1308
progress from severe memory loss to declines in thinking and
behavioral and social skills, spiraling downward to dementia
and the loss of a person’s very selfhood, and ultimately to
death. Between five and ten percent of Americans aged 65 al‐
ready have Alzheimer’s disease. Between 40 and 50 percent
of Americans who turn 85 years old will have Alzheimer’s.
Dkt. 77‐3 at 6, 16 (Lamb Dep. I, at 18, 61).
Alzheimer’s disease is the focus of extensive medical re‐
search toward treatment and possible cure. The Indiana Uni‐
versity School of Medicine houses the National Cell Reposi‐
tory for Alzheimer’s Disease, as well as an Alzheimer’s Dis‐
ease Center, one of 32 research centers funded by the National
Institutes of Health on the subject. Indiana University also op‐
erates the Stark Neurosciences Research Institute, which con‐
ducts research on Alzheimer’s disease and other neurological
disorders.
One plaintiff, Dr. Debomoy Lahiri, is a leading neurologi‐
cal researcher on the university faculty. He and his colleagues
specialize in the study of brain disorders, primarily Alz‐
heimer’s disease. They use tissue from aborted fetuses and de‐
rivatives from such tissue, including cells cultured in labora‐
tories from fetal cells, as well as DNA, RNA, proteins and
other molecules and sub‐cellular structures obtained from
such cells. The evidence in this record establishes that fetal
brain tissue—or at least cells and complex molecules derived
from such tissue—is essential to research on possible cures
and treatments. There is no adequate substitute.
Since 2011, Dr. Lahiri has received about 25 shipments of
fetal tissue from the Birth Defects Research Laboratory at the
University of Washington, which receives tissue from abor‐
Nos. 18‐1146, 18‐1247 & 18‐1308 17
tions performed lawfully in the State of Washington. The rec‐
ord here shows that the nationally recognized laboratory ad‐
heres to strict federal and state regulations for receiving do‐
nated fetal tissue and providing the tissue for research, in‐
cluding ensuring (1) that all women donating fetal tissue have
given informed consent, and (2) that the laboratory does not
sell or profit from providing fetal material. Dkt. 77‐20 at 1–3
(BDRL affidavit), The shipments do not include any intact or‐
gans but only tiny tissue samples. Each shipment includes tis‐
sue contained within approximately two teaspoons of liquid
medium.
Even if one could say confidently that the Birth Defects
Research Laboratory material is “fetal tissue” for purposes of
the statute (and I am not so confident), it becomes even less
clear once Dr. Lahiri works with the material. One critical step
in research with these tiny samples of tissues is to “dissociate”
and culture them—i.e., to separate the cells from each other
and to place them in a laboratory dish with conditions and
nutrients that allow the cells to grow, divide, and re‐divide,
thus multiplying the material available for research.
Also relevant here, medical research is collaborative, both
within Indiana University and with the NIH and other insti‐
tutions. To be valuable, research must be replicable. That re‐
quires cooperation and collaboration among researchers. Dr.
Lahiri and his colleagues are requested and expected to trans‐
fer tissue samples between laboratories in the course of that
collaboration. Such collaboration is also, understandably, a
condition of their NIH funding.
The Statutory Language, This Lawsuit, and the Legislative Pro‐
cess: The Indiana law poses serious vagueness problems in
terms of what counts as “fetal tissue,” what researchers may
18 Nos. 18‐1146, 18‐1247 & 18‐1308
do with fetal tissue, and whether the law even applies to fetal
tissue that is not actually sold. Some of the problems are ap‐
parent from the statutory text itself. Others have emerged in
this lawsuit and examination of the legislative process that led
to enactment of the law in 2016.
The statute says: “A person who intentionally acquires, re‐
ceives, sells, or transfers fetal tissue commits unlawful trans‐
fer of fetal tissue, a Level 5 felony.” Ind. Code § 35‐46‐5‐1.5(d).
A key definition provides: “As used in this section, ‘fetal tis‐
sue’ includes tissue, organs, or any other part of an aborted
fetus.” § 1.5(b).
The sharpest dispute between the parties is the scope of
the “any other part” phrase in the definition of fetal tissue.
Let’s assume the statute makes criminal the receipt of ship‐
ments of fetal tissue like those plaintiffs received in the past
from the birth defects laboratory in Washington.
That raises the question whether the “any part of” defini‐
tion in the Indiana law extends to make criminal the receipt
of lines of cells derived from fetal tissue. The parties agree here
that, as a matter of biology, the process of cell division pro‐
duces a culture that contains some cells remaining from the
original tissue. The new culture also contains other, newly‐
divided cells that were not part of the original tissue, but
which may well contain complex molecules (such as DNA,
RNA, or proteins) that were present in the original tissue sam‐
ple. See Prosecutors’ Br. at 10; Plaintiffs’ Br. at 40. So, to re‐
phrase the key question, does a second‐, third‐, tenth‐, or nth‐
generation cell with such molecules fall under the statutory
definition as “any other part” of an aborted fetus?
Nos. 18‐1146, 18‐1247 & 18‐1308 19
That question is not at the periphery of this statute but at
its core. The statutory language, “any other part,” offers no
guidance. It does not signal that the legislature even recog‐
nized this critical issue. And as the law has been defended in
this lawsuit, the problem has actually become even more se‐
vere. In the district court, the State took the position that “any
other part” does not apply to:
(a) placental or umbilical cord blood tissue or
cells, or biological material obtained from such
blood, tissue or cells;
(b) fetal cell lines including but not limited to
HEK293 (or biological material obtained from
such cell lines) derived from the cells of an
aborted fetus, but which do not contain cells
which were originally part of an aborted fetus;
(c) fetal cells (or biological material obtained
from such cells) which were derived from
aborted fetal cells, but are not cells which were
originally part of an aborted fetus.
Dkt. 75 at 2.1
Later in the district court proceedings, the State asserted
that once cells have been separated from the fetal tissue and
grow, divide into new cells, and are moved from the first dish
to the second dish, they can no longer be considered part of
the aborted fetus. Dkt. 81 at 48. Or, the State suggests, that
separation may occur even earlier in the process of culturing
1 HEK293 is a line of cells first cultured in 1973 and widely used in
research. The record indicates it is unknown whether the original cells
came from an aborted fetus. See Dkt. 79‐8 at 59–62 (Cate Dep.).
20 Nos. 18‐1146, 18‐1247 & 18‐1308
cells, even before the first passage, when cells are dissociated.
Id. at 48.
Those limits imply that the Indiana law would not inter‐
fere with plaintiffs’ research as long as the laboratory in
Washington or some other lab outside of Indiana could per‐
form the first round of cell growth and division. If the cultures
of cells would not count as “fetal tissue” under the Indiana
law, plaintiffs would be free to obtain and use them for re‐
search.
The vagueness problem stems from the fact that it’s im‐
possible to know what weight to give the State’s assurances.
The proposed limits might well be sensible as a matter of pol‐
icy. But as the district judge pointed out, these proposed lim‐
its have no apparent basis in the statutory text, and the State
has not explained how it derives those supposedly comfort‐
ing limits from the Indiana law. The State’s lawyers asserted
in oral argument that their assurances would be binding on
the State and its present and future prosecuting attorneys.
That remains to be seen.2
Another focus of the vagueness challenge is the key verbs
in the statute. If you have “fetal tissue” within the meaning of
the statute, what can you do with it? A person who intention‐
ally “acquires, receives, sells, or transfers fetal tissue” com‐
mits a felony. § 1.5(d). Federal law, however, already makes
2 The defendant prosecutors are not representing themselves, nor are
they represented by the Indiana Attorney General or even by private law‐
yers from Indiana. Nevertheless, their private lawyers have been given the
responsibility of defending and interpreting the law. See Ind. Code § 4‐6‐
5‐3 (Attorney General must consent in writing to employment of other
counsel for state agencies and the State). Their views must be taken seri‐
ously.
Nos. 18‐1146, 18‐1247 & 18‐1308 21
it a federal crime to sell fetal tissue for “valuable considera‐
tion,” regardless of source, see 42 U.S.C. § 289g–2(a), so “sell”
is not at issue here.3
The focus is on “acquire,” “receive,” and “transfer.” My
colleagues correctly point out that these are common, well‐
understood terms in criminal law. But when plaintiffs chal‐
lenged the new law, the State took the following position:
The word ‘transfer’ in Section 1.5(b) of the Stat‐
ute does not apply to physical movement of
cells or biological materials received, generated
or stored at Indiana University before the enact‐
ment of the Statute provided that:
(a) the physical movement is within or among
laboratories, buildings or physical facilities of
Indiana University by any faculty member, em‐
ployee, representative or agent of Indiana Uni‐
versity;
(b) the physical movement is the result of a fac‐
ulty member, employee, representative or agent
of Indiana University permanently removing
such materials from Indiana University’s build‐
ings or physical facilities; or
3 Under the federal law, “valuable consideration” does not include
reasonable payments associated with transportation, implantation, pro‐
cessing, preservation, quality control, or storage of human fetal tissue. 42
U.S.C. § 289g–2(e)(3). Unlike the Indiana law, which applies only to tissue
from abortions, federal law applies regardless of the source of the tissue.
22 Nos. 18‐1146, 18‐1247 & 18‐1308
(c) the physical movement is at the request of
the National Institute of Health (‘NIH’) or pur‐
suant to the terms or conditions of any NIH
grant.
Dkt. 75 at 2.
The State further explained that there will be no “transfer”
if there is no change in ownership or possession of the tissue,
referring apparently to possession by Indiana University as
an institution, not possession being transferred from one hu‐
man being to another inside a university laboratory. Dkt. 90
at 16. The apparent concession that plaintiffs can move fetal
tissue around at the request of the NIH or to comply with a
grant sounds reasonable, but where does that come from?
As with the proposed limits on “fetal tissue” itself, there is
no apparent textual basis for these limits. These proposed lim‐
its are also inconsistent with the way the law regulates trans‐
fer and possession of so many other forms of contraband,
such as illegal drug, firearms, and other weapons. If one per‐
son cooks crack cocaine in a kitchen and hands a pot of the
drug to a confederate at the kitchen table, federal criminal law
would say there was a transfer of possession, regardless of the
ownership of the drug. The same problems are inherent in the
State’s approach to “acquire” and “receive,” proposing limits
that have no apparent textual or other legal bases.
These attempts to defend the law by limiting it in these
ways only add to the mystery of its meaning. One is left to
wonder why the State proposes them. Members of this court
repeatedly asked the State’s lawyers to explain why they felt
these implausible limitations were needed. No answer was
forthcoming.
Nos. 18‐1146, 18‐1247 & 18‐1308 23
As best I can tell, the State’s lawyers seem to be trying to
prevent the new law from having effects that would flow nat‐
urally from the statutory language but that seem not to be sen‐
sible from a practical or policy perspective. Implicit in the ef‐
fort is the concession that, as drafted, the operative portions
of § 1.5 will have undesired and unintended effects that will
interfere with important and legitimate medical research.
In other words, the State’s lawyers seem to be trying to
save the legislature from itself. The majority nonetheless de‐
fends the potentially extreme outcome of this statute, noting
that there is “serious debate about when, if at all, it is ethical
to perform medical experiments on aborted fetal tissue.” Ante
at 9. Thus, regardless of whether the statute is “sensible,” the
fact that the Indiana legislature “cho[se] sides in an ethical de‐
bate does not condemn [the] law.” Ante at 10. Unfortunately,
the majority describes a legislative process regarding this stat‐
utory provision that did not actually happen.
The available evidence from the Indiana legislature indi‐
cates that it adopted this criminal provision on fetal tissue re‐
search without realizing it would have any impact on medical
research using fetal tissue, let alone shut down this research
on Alzheimer’s disease. The legislature simply did not engage
with the hard policy choices and the natural consequences of
its language. The result was to distill here both concerns at the
center of vagueness doctrine, the fair notice and separation of
powers so critical to liberty.
Section 1.5 was adopted as part of a broader bill, House
Enrolled Act No. 1337, that imposed a variety of restrictions
on abortions and related issues. The primary focal points of
this bill have already been considered by this court. See
Planned Parenthood of Indiana and Kentucky, Inc. v. Comm’r of
24 Nos. 18‐1146, 18‐1247 & 18‐1308
Indiana State Dep’t of Health, 888 F.3d 300 (7th Cir. 2018) (hold‐
ing unconstitutional provisions prohibiting women from ter‐
minating pregnancies due to fetal genetic abnormalities, race,
or gender and requiring burial or cremation of embryonic or
fetal tissue), petition for cert. filed (U.S. Oct. 12, 2018) (No. 18‐
483); Planned Parenthood of Indiana and Kentucky, Inc. v. Comm’r
of Indiana State Dep’t of Health, 896 F.3d 809 (7th Cir. 2018)
(holding unconstitutional provision requiring women to ob‐
tain ultrasound at least 18 hours before obtaining an abor‐
tion), petition for cert. filed (U.S. Feb. 4, 2019) (No. 18‐1019).
In over six hours of archived video footage of the relevant
Indiana House and Senate committees’ discussions of this bill,
dozens of witnesses testified in favor of and against the bill.
Not one witness mentioned medical research using aborted
fetal tissue. If the legislature was actually choosing sides on
such a significant issue, one would expect some mention of it.
See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 469 (2002) (Ste‐
vens, J., dissenting) (“I think judges as well as detectives may
take into consideration the fact that a watchdog did not bark
in the night.”), quoting Harrison v. PPG Industries, Inc., 446
U.S. 578, 602 (1980) (Rehnquist, J., dissenting).
Nor was there any discussion of § 1.5 in the floor debates
on the bill. The only substantive discussion of the provision I
could find in the legislative history came in seven minutes of
a meeting of the Indiana Senate’s Health & Provider Services
Committee. The discussion shows not a policy choice on an
important issue but instead a startling disconnect between the
statutory language and the stated intentions of the legislators.
One of the bill’s sponsors, Senator Holdman, said that the pro‐
vision “has to do with the selling of fetal tissue. Which makes
Nos. 18‐1146, 18‐1247 & 18‐1308 25
it illegal in the state of Indiana to sell fetal tissue, which basi‐
cally addresses the issue we’ve seen around the country with
Planned Parenthood and some of the things that have been
going on there.” Hearing, Indiana Senate Health and Provider
Services Committee at 18:26–18:45 (Feb. 24, 2016),
http://iga.in.gov/information/archives/2016/video/commit‐
tee_health_and_provider_services_3900/.4
Senator Stoops asked Senator Holdman a series of ques‐
tions about whether parents of an aborted fetus could consent
to an autopsy or other research use of the tissue. Id. at 21:39–
22:14. Senator Holdman said that would be possible, prompt‐
ing this follow‐up:
S. Stoops: Right, that is a specific autopsy. But
what if the parents want to donate the fetus for
research into the condition? I guess that would
not be allowed. I mean an autopsy to determine
maybe a genetic defect after the abortion is one
4 It was widely understood that this legislation responded to the 2015
“controversy over undercover videos of Planned Parenthood employees
discussing fetal organ donations,” despite the fact that federal and state
investigations of Planned Parenthood, including one in Indiana, found no
wrongdoing, and criminal charges had instead been filed against the
video‐makers. See Chelsea Schneider and Stephanie Wang, Bill Seeks Fur‐
ther Limits on Abortion, The Indianapolis Star at A5 (Mar. 8, 2016); see also
Danielle Kurtzleben, Planned Parenthood Investigations Find No Fetal Tissue
Sales, NPR (Jan. 28, 2016, 12:47 PM),
http://www.npr.org/2016/01/28/464594826/in‐wake‐of‐videos‐planned‐
parenthood‐investigations‐find‐no‐fetal‐tissue‐sales (summarizing re‐
sults of investigations).
26 Nos. 18‐1146, 18‐1247 & 18‐1308
thing. But I think actually allowing the fetal tis‐
sue to be used for research purposes seems to be
outlawed in this bill.
S. Holdman: Well, I wouldn’t say that it [research
with fetal tissue] is outlawed. I think the word au‐
topsy encompasses that research portion of
what is done with that piece of tissue that is di‐
agnosed after the fact through an autopsy. So
maybe it is just a matter of semantics, here, per‐
haps Senator Stoop. But autopsy is the word
that we landed on.
S. Miller (Committee Chair): And just if I could
elaborate, I was a part of those conversations.
This is up to a parent to request the autopsy.
And I think at the time the parent requests the
autopsy, they could list the kind of things they
are looking for. And what kind of results they
want as part of that investigation. So I think for
the purposes that we put in the bill, that this co‐
vers it, Senator Stoops. At least I’m comfortable
with that.
S. Holdman: That’s right. And to your point,
Madame Chair, in any case the parent has to
consent to this procedure being done. It is not
going to be done just because the physician or
the hospital may want to have that done. It has
to be consented to by the parent itself.
S. Stoops: Right. So on page 15, line 9, where it
says: ‘A person who intentionally acquires, or
Nos. 18‐1146, 18‐1247 & 18‐1308 27
sells, etc. or transfers fetal tissue, commits un‐
lawful transfer of fetal tissue and is a Level 5 fel‐
ony.’ So, is that if that person did not get per‐
mission from the parent? So otherwise if the par‐
ent gave permission, then that does not apply?
S. Holdman: That would be my understanding, yes.
I thought you were going to ask me what a
Level 5 Felony outcome was. And we have the
Criminal Courts Chair here who could answer
that question for you, as well.
Id. at 23:17–25:43
That exchange is remarkable, particularly because of the
role of the pregnant woman’s consent for the research. Fed‐
eral law already made clear that fetal tissue could not be used
for any research purposes without the consent of the pregnant
woman. 42 U.S.C. § 289g–1(b). The evidence here shows that
the birth defect laboratory in Washington always obtains the
woman’s consent to use tissue for research. And when called
upon to explain § 1.5 to their colleagues, the sponsors said
(a) that it would apply only to sale of fetal tissue in Indiana,
and (b) that the consent of the pregnant woman for research
use would amount to a complete defense to the criminal re‐
strictions.
Now, I am fully aware that legislatures are not required to
produce legislative history. They are not required to explain
or discuss the language they enact. Courts generally presume
that all legislators have read and understood the bills they
vote upon. As we try to be faithful agents of the law‐makers,
we thus apply the ordinary meaning of the statutory lan‐
guage. After all, as the majority points out, one can have a
28 Nos. 18‐1146, 18‐1247 & 18‐1308
“serious debate about when, if at all, it is ethical to perform
medical experiments on aborted fetal tissue,” ultimately
“choosing sides.” Ante at 10.
In this instance, however, there was no such debate. In‐
stead, the law’s defenders have backed away from those ordi‐
nary meanings at every opportunity, first in the legislative
process and then in the lawsuit. This highly unusual record
ought to raise warning flags for us. The statute is fatally vague
because its supporters did not pay enough attention to render
it intelligible as applied to this medical research, which is the
relevant core, not the periphery, of this statute.
Consider this warning: “Under the Constitution, the adop‐
tion of new laws restricting liberty is supposed to be a hard
business, the product of an open and public debate among a
large and diverse number of elected representatives. Allow‐
ing the legislature to hand off the job of lawmaking risks sub‐
stituting this design for one where legislation is made easy,
with a mere handful of unelected judges and prosecutors free
to ‘condem[n] all that [they] personally disapprove and for no
better reason than [they] disapprove it.’” Dimaya, 138 S. Ct. at
1228 (Gorsuch, J., concurring), quoting Jordan, 341 U.S. at 242
(Jackson, J., dissenting).
What happened here was just such a “hand‐off” of law‐
making power. It highlights why the majority’s solution here,
abstaining and leaving the statute‐writing task to the state
courts, is not an appropriate response. The majority proposes
that Indiana state courts should be permitted a decade or two
to resolve “edge questions.” like the “concrete disputes such
as the coverage of cells derived from fetal tissue.” Ante at
6 & 7.
Nos. 18‐1146, 18‐1247 & 18‐1308 29
For example, will state courts decide that “placental or
umbilical cord tissue” counts as “any other part of a fetus”?
Maybe, the majority says. On one hand, the majority muses,
“[t]he placenta is an independent organ and so may be out‐
side the statutory scope, but the statute does not address the
topic.” Ante at 5. On the other hand, however, Indiana per‐
mits the purchase or sale of fetal material for “fetal stem cell”
research if “the biological parent has given written consent for
the use of the fetal stem cells,” Ind. Code § 35‐46‐5‐3, but later
defines “fetal stem cell” to include only the “placenta,” “um‐
bilical cord,” “amniotic fluid,” and “fetal tissue” if “taken
from a fetus that was either miscarried or stillborn”—not “any
cells that are taken as a result of an abortion,” Ind. Code § 16‐
18‐2‐128.5. Although that provision is limited to commercial
transactions, which § 1.5 is not, perhaps that definition will
support the criminalization of the non‐commercial acquisi‐
tion and transfer of abortion‐derived umbilical and placental
cell. Plaintiffs apparently will just have to wait and see how
the Indiana state courts will write that part of the statute.
The majority bases its preference for a state‐court iterative
process on Johnson, in which the Supreme Court declared the
statute at issue vague only after struggling with it for 20 years,
while here “the process has not even begun.” Ante at 8. But
that was not the real lesson of Johnson, even though the Court
acknowledged that “persistent efforts” by courts to establish
a meaningful standard for a statute can be one source of “ev‐
idence of vagueness.” Johnson, 135 S. Ct. 2551, 2558 (2015),
quoting United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).
The Court did not signal that prosecutors and judges would
have several decades to define what “edge” behavior is actu‐
ally criminal just because a court hypothesizes that there must
30 Nos. 18‐1146, 18‐1247 & 18‐1308
be some knowable core of prohibited conduct. To the con‐
trary, Johnson observed that its “holdings squarely contradict
the theory that a vague provision is constitutional merely be‐
cause there is some conduct that clearly falls within the pro‐
vision’s grasp.” Id. at 2561 (describing examples). And note,
critically, that Johnson was only about a sentencing enhance‐
ment, not whether conduct was criminal in the first place.
In a context more similar to this case, the Court struck
down a criminal statute that required “humane and sanitary”
disposal of fetal remains. City of Akron v. Akron Center for Re‐
productive Health, Inc., 462 U.S. 416, 451 (1983), overruled on
other grounds by Planned Parenthood of Southeastern Pennsyl‐
vania v. Casey, 505 U.S. 833 (1992). To defend the provision,
Akron argued that it clearly intended only to “preclude the
mindless dumping of aborted fetuses onto garbage piles.” Id.
(internal quotation and citation omitted). The Court did not,
however, send the matter to the state courts to work out case
by case what would count on the periphery as “humane and
sanitary.” Rather, “[t]his level of uncertainty is fatal where
criminal liability is imposed” because the statute “fails to give
a physician ‘fair notice that his contemplated conduct is for‐
bidden,’ United States v. Harriss, 347 U.S. 612, 617 (1954), [and
thus] it violates the Due Process Clause.” Id. at 451–52. Nei‐
ther did the Court indulge Akron’s proposal to sever “hu‐
mane” from the statute: “The uncertain meaning of the phrase
‘humane and sanitary’ leaves doubt as to whether the city
would have enacted [the statute] with the word ‘sanitary’
alone.” Id. at 452 n.45. In other words, the city was free “to
Nos. 18‐1146, 18‐1247 & 18‐1308 31
enact more carefully drawn regulations,” id., but that was a
legislative job—not a prosecutorial or judicial one.5
The majority also reads too much into Bauer v. Shepard, 620
F.3d 704, 706–07 (7th Cir. 2010), which considered a challenge
by two Indiana judges and an advocacy group to provisions
of Indiana’s Code of Judicial Conduct. In Bauer, the plaintiff‐
judges feared that responding to the group’s questionnaires
might violate the state’s judicial ethics code. In that case, the
Commission on Judicial Qualifications might issue public ad‐
monitions (if the subject of the admonition agreed), or a court
of appeals could remove the judge from a particular case, or,
as a matter of last resort, “the state’s Supreme Court c[ould]
remove [the] judge from office or impose substantial disci‐
pline.” Id. at 707–08. We acknowledged that “[t]o the extent
there is uncertainty” regarding some provisions, “Indiana
provides means of clarification,” and the Commission on Ju‐
dicial Qualifications “already has issued several clarifying ad‐
visory opinions.” Id. at 712. Judges who worried about further
applications of the Code should “wait and see,” we said,
given that beyond the “advisory opinions that reduce uncer‐
tainty,” when the “Commission brings a proceeding the state
judiciary will issue an opinion that makes the rule more con‐
crete.” Id. at 716.
The majority quotes at length from Bauer to explain that it
is “more respectful of our judicial colleagues in Indiana, to as‐
5 The majority writes that Akron was “overruled” by Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), but
Casey did not overrule any portion of Akron dealing with the vague crim‐
inal statute on fetal remains.
32 Nos. 18‐1146, 18‐1247 & 18‐1308
sume that they will act sensibly and resolve the open ques‐
tions 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.” Ante at 7, quoting Bauer, 620
F.3d at 716. The bracketed “[a]” in the majority’s quotation,
however, stands in for Bauer’s actual language: “an adminis‐
trative system”—which in that case was the Commission on
Judicial Qualifications and its ability to provide advisory
opinions. There is no parallel administrative system here that
would justify the majority’s novel form of abstention. See also
Bauer, 620 F.3d at 717 (describing Pullman abstention as an‐
other path to same result).
The majority’s approach also overlooks the fact that we
now have experience with this statute, litigated with able
counsel on both sides and full discovery, including deposi‐
tions and statements from internationally recognized scien‐
tific experts. It turns out that interpreting this law is a mess.
In fact, the whole process makes a mockery of the standard
that any “normal person” could figure out what is included
in “any other part of an aborted fetus.”6
It is not the job of courts to tell legislators what processes
to follow toward the final enactment of the statutory language
6 The majority’s surprising reliance on Parker v. Levy, 417 U.S. 733
(1974), and Rose v. Locke, 423 U.S. 48 (1975), is misplaced. Parker upheld the
military law forbidding “conduct unbecoming an officer and a gentle‐
man,” but the Court’s opinion repeatedly emphasized the special consid‐
erations that apply to military law and tradition. 417 U.S. at 743–52, 756–
57, 760. Rose upheld a conviction for a “crime against nature,” drawing on
a long common‐law tradition that has since been superseded. See Lawrence
v. Texas, 539 U.S. 558 (2003).
Nos. 18‐1146, 18‐1247 & 18‐1308 33
of their choice. Indiana is absolutely permitted to, as one leg‐
islator put it, move up from being “49 out of 50” in terms of
abortion restrictions, and “attempt[] to be the most restrictive
state in the country … shooting for 50.” Senate Committee
Hearing at 1:47:22–1:47:32 (Feb. 24, 2016). But it is our job to
insist that the effort remain within constitutional parameters:
that a new criminal law give fair notice of what is criminal
and what is not, and that the legislature make the key choices
rather than delegate them to prosecutors and courts. That
simply did not happen with § 1.5. I would affirm the district
court’s injunction against its enforcement as written.
Takings Claim: Finally, we should not decide the merits of
Indiana University’s claim for taking of private property
without compensation. That claim simply is not ripe yet. The
majority mistakenly asserts that the statute “does render val‐
ueless any fetal tissue, derived from abortions, owned by In‐
diana University.” Ante at 11. That is not consistent with the
position taken by the law’s defenders. They insist that Indiana
University remains free to conduct research with materials on
hand, and even to transfer it at the request of the NIH. Supra
at 21–22.
More fundamental, the legal status of Indiana University
vis‐à‐vis the state government is more nuanced than the ma‐
jority acknowledges. For example, it is well‐established that
the university is an arm of the state for purposes of the Elev‐
enth Amendment and is a state actor for purposes of the Four‐
teenth Amendment and other constitutional provisions. See
Medlock v. Trustees of Indiana University, 738 F.3d 867, 871 (7th
Cir. 2013); Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000).
But Indiana law does not always treat the university as the
state, particularly when it comes to property. See Sendak v.
34 Nos. 18‐1146, 18‐1247 & 18‐1308
Trustees of Indiana University, 260 N.E.2d 601, 603–05 (Ind.
1970) (university not subject to constitutional bar to owner‐
ship of private stock); State Board of Accounts v. Indiana Univer‐
sity Foundation, 647 N.E.2d 342, 352 (Ind. App. 1995) (univer‐
sity is “state” for purposes of State Board of Accounts statute
but not in accepting and administering private gifts). The ma‐
jority seems to imply that state legislators could simply con‐
fiscate private gifts and grants to the university (as distinct
from a private foundation associated with it) and use them for
more general state‐government purposes. That would be a
troubling prospect for many donors and grantors. We would
do better to say that the university’s takings claim is simply
not yet ripe because the actual scope of the challenged statute
remains in so much doubt.