Trustees of Indiana University v. Curry, 031419 FED7, 18-1146

Docket Nº:18-1146, 18-1247, 18-1308
Party Name:Trustees of Indiana University, et al., Plaintiffs-Appellees, Cross-Appellants, v. Terry Curry, Prosecuting Attorney of Marion County, Indiana, and Christopher Gaal, Prosecuting Attorney of Monroe County, Indiana, Defendants-Appellants, Cross-Appellees.
Judge Panel:Before Easterbrook, Hamilton, and Scudder, Circuit Judges. Hamilton, Circuit Judge, dissenting.
Case Date:March 14, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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.

Nos. 18-1146, 18-1247, 18-1308

United States Court of Appeals, Seventh Circuit

March 14, 2019

Argued 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.

Before Easterbrook, Hamilton, and Scudder, Circuit Judges.


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 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.

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 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 scholarship.

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 injunction 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 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.

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 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 "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, understandable core. Instead the judge worried about the periphery.

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 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 unconstitutional.

The two 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.

Yet 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 margin.

A federal district judge...

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