Lifchez v. Hartigan

• Decision Date: 26 April 1990
• Docket Number: No. 82 C 4324.,82 C 4324.
• Citation: 735 F. Supp. 1361
• Parties: Aaron LIFCHEZ, et al., Plaintiffs, v. Neil F. HARTIGAN and Richard M. Daley, Defendants.
• Court: U.S. District Court — Northern District of Illinois

735 F. Supp. 1361

Aaron LIFCHEZ, et al., Plaintiffs, v. Neil F. HARTIGAN and Richard M. Daley, Defendants.

No. 82 C 4324.

United States District Court, N.D. Illinois, E.D.

April 26, 1990.

COPYRIGHT MATERIAL OMITTED

Colleen K. Connell, The Roger Baldwin Foundation of ACLU, Lori B. Andrews, Ami Jaeger, American Bar Foundation, Frances Krasnow, Neal, Gerber & Eisenberg, Chicago, Ill., for plaintiffs.

Harry McKee, Asst. State's Atty., Paula Giroux, Asst. Atty. Gen., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ANN C. WILLIAMS, District Judge.

Dr. Lifchez represents a class of plaintiff physicians who specialize in reproductive endocrinology and fertility counselling. Physicians with these medical specialities treat infertile couples who wish to conceive a child. Dr. Lifchez is suing the Illinois Attorney General and the Cook County State's Attorney, seeking a declaratory judgment that a provision of the Illinois Abortion Law is unconstitutional. He also seeks a permanent injunction against the defendants from enforcing the statute. The provision at issue concerns fetal experimentation. Ill.Rev.Stat., Ch. 38 ¶ 81-26, § 6(7) (1989). Both sides move for summary judgment, alleging that there are no disputed facts and that each side is entitled to judgment as a matter of law. The court finds that § 6(7) of the Illinois Abortion Law violates the Constitution in two ways: (1) it offends Fourteenth Amendment principles of due process by being so vague that persons such as Dr. Lifchez cannot know whether or not their medical practice may run afoul of the statute's criminal sanctions, and (2) the statute impinges upon a woman's right of privacy and reproductive freedom as established in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), and their progeny. The court therefore declares § 6(7) of the Illinois Abortion Law to be unconstitutional and permanently enjoins the defendants from enforcing it.

Vagueness¹

Section 6(7) of the Illinois Abortion Law provides as follows:

(7) No person shall sell or experiment upon a fetus produced by the fertilization of a human ovum by a human sperm unless such experimentation is therapeutic to the fetus thereby produced. Intentional violation of this section is a Class A misdemeanor. Nothing in this subsection (7) is intended to prohibit the performance of in vitro fertilization.

Ill.Rev.Stat., Ch. 38 ¶ 81-26, § 6(7) (1989). Dr. Lifchez claims that the Illinois legislature's failure to define the terms "experimentation" and "therapeutic" renders the statute vague, thus violating his due process rights under the Fourteenth Amendment. The court agrees.

Vague laws — especially criminal laws — violate due process in three ways. First, they fail to give adequate notice of precisely what conduct is being prohibited. Without such notice, it is impossible for people to regulate their conduct within legal bounds. Smith v. Goguen, 415 U.S. 566, 572 n. 8, 94 S.Ct. 1242, 1247 n. 8, 39 L.Ed.2d 605 (1974) (statute holding criminally liable anyone who "treats contemptuously" the United States flag held to be unconstitutionally vague, citing Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939): "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.") See also Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972) ("Vague laws may trap the innocent by not providing fair warning.") The second problem with vague statutes is that, by failing to explicitly define what conduct is unlawful, they invite arbitrary and discriminatory enforcement by the police, judges, and juries. Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L.Ed.2d 110 (1972) (Court held unconstitutionally vague a vagrancy statute outlawing "rogues ... vagabonds ... common night walkers ... persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers ..."). See also Smith v. Goguen, 415 U.S. at 575, 94 S.Ct. at 1248 (commenting on the lack of a clear standard in phrase "treats contemptuously" for flag statute, Court said "Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law.")

Last, vague standards of unlawful conduct, coupled with the prospect of arbitrary enforcement, will inevitably cause people to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Grayned v. Rockford, 408 U.S. at 109, 92 S.Ct. at 2299. This is an especially dangerous consequence of vague statutes that encroach upon constitutional rights. Colautti v. Franklin, 439 U.S. 379, 391, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979) (held unconstitutionally vague an abortion law requiring persons performing abortions to preserve life of fetus if it could be determined that the fetus "is viable or if there is sufficient reason to believe that the fetus may be viable ..."). See also Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) (although upholding drug paraphernalia ordinance against a vagueness attack, Court warned that "perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply."); Smith v. Goguen, 415 U.S. at 573, 94 S.Ct. at 1247 ("Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.") It is a fundamental principle of due process that persons "`of common intelligence' not be forced to guess at the meaning of the criminal law." Id. at 574, 94 S.Ct. at 1248.

A. Experiment or Routine Test?

The Illinois legislature's failure to define "experimentation" and "therapeutic" in § 6(7) means that persons of common intelligence will be forced to guess at whether or not their conduct is unlawful. As Dr. Lifchez points out in his briefs, there is no single accepted definition of "experimentation" in the scientific and medical communities. Dr. Lifchez identifies four referents for the term. One meaning of experiment is pure research, where there is no direct benefit to the subject being experimented on, and the only goal of the research is to increase the researcher's knowledge. Plaintiff's Brief in Support of Summary Judgment at 7. This definition describes the defendants' "Orwellian nightmare" of laying out fetuses in a laboratory and exposing them to various harmful agents "just for the scientific thrill" of it. Defendant Hartigan's Reply Brief in Support of Summary Judgment at 3. A second meaning of experiment includes any procedure that has not yet been sufficiently tested so that the outcome is predictable, or a procedure that departs from present-day practice. This is the kind of definition adhered to by insurance companies, which often deny coverage for procedures whose effectiveness is not generally recognized. Plaintiff's Brief in Support of Summary Judgment at 8. Dr. Lifchez also cites to the definition of experiment by the American Fertility Society, which includes as "experimental" even standard techniques when those techniques are performed by a practitioner or clinic for the first time. Id. at 8-9. Finally, any medical therapy where the practitioner applies what he learns from one patient to another, could be described as an "experiment." Id. at 9. See, e.g., Margaret S. v. Edwards, 794 F.2d 994, 999 (5th Cir.1986) (medical treatment can be described as both a test and an experiment "whenever the results of the treatment are observed, recorded, and introduced into the data base that one or more physicians use in seeking better therapeutic methods.") This definition of experiment is in line with that apparently contemplated by the federal regulations on protection of human research subjects: "`Research' means a systematic investigation designed to develop or contribute to generalizable knowledge." 45 C.F.R. § 46.102(e) (1989).

The legislative history of § 6(7) is unenlightening as far as nailing down a particularized meaning of "experiment" to counter the vagueness that Dr. Lifchez claims is inherent in the statutory language. The bill's sponsor, Representative O'Connell, responded as follows to the governor's veto of the bill (due to what the governor saw as unconstitutional vagueness in the word "experimentation"): "I would submit that the word experiment is quite clear and does not have a vague connotation to it. In fact, the American Heritage dictionary is quite clear in defining experiments as a test made to demonstrate a known truth; to examine the validity of a hypothesis or to determine the efficacy of something previously untried." Plaintiff's Response to Motion for Summary Judgment, Exhibit A, State of Illinois 84th General Assembly, House of Representatives Debate, October 30, 1985 (Exhibit A), p. 74. It is hard to imagine two more opposed definitions of "experiment" than, on the one hand, "a test made to demonstrate a known truth," and, on the other hand, a test "to determine the efficacy of something previously untried." That the bill's sponsor could offer such wildly different definitions of "experiment" as if they both meant the same thing offers little help to persons of common intelligence who want to know what the state forbids.² Smith v....