A three-judge panel of the Seventh U.S. Circuit Court of Appeals this month overturned a lower court decision that an Indiana law criminalizing much fetal tissue research is unconstitutionally vague. The ruling moves such work closer to being a felony in the Hoosier State. It’s the most significant court decision yet on laws recently passed in at least seven states that restrict research on tissue from elective abortions.
Indiana University (IU), which sued to block the 2016 law from taking effect, planned this week to ask the full seventh circuit in Chicago, Illinois, to rehear the case. “We are very disappointed” in the ruling, said Fred Cate, vice president for research at IU in Bloomington. The plaintiffs—Cate, the university’s trustees, and two of its neuroscientists—say the law would derail studies at the university’s Indiana Alzheimer Disease Center in Indianapolis, hamper work on autism and Down syndrome, and threaten collaborations outside the state.
If the full appeals court declines to hear the case, or hears it and upholds the law, “the consequences for fetal tissue research [in Indiana] are severe,” says Charles Geyh, an expert on the judiciary at IU’s Maurer School of Law.
IU’s fetal tissue work relies on the regular receipt of brain tissue and occasional fetal organs donated after elective abortions and collected, processed, and shipped by a lab at the University of Washington (UW) in Seattle. But the 2016 Indiana law, which also includes controversial abortion restrictions that are mired in separate lawsuits, effectively prohibits such work because it would punish anyone who “intentionally acquires, receives, sells, or transfers fetal tissue” from elective abortions with as many as 6 years in prison and up to $10,000 in fines.
Indiana State Senator Travis Holdman (R) was the lead author of the fetal tissue provisions in the 2016 bill, which U.S. Vice President Mike Pence signed into law when he was the state’s governor. Holdman applauded the court’s decision. “The majority of the [Indiana] legislature voted to say we have a respect for life, and that [research] is not how we believe that fetal remains should be treated,” Holdman says. “This doesn’t put an end to fetal tissue research in any way because it does not prohibit fetal tissue from miscarriages or stillbirths to be used.” (Scientists say the remains from miscarriages and stillbirths are difficult to collect and that the tissue is often abnormal.)
In December 2017, a U.S. district court judge in Indianapolis agreed with IU that the words “acquires, receives … or transfers” in the law were unconstitutionally vague. Could a “transfer” include moving a plate of cells between IU labs, for instance? She struck the words from the law. The judge also agreed with IU’s argument that the law’s definition of fetal tissue as “tissue, organs or any other part of an aborted fetus” was too vague, possibly covering DNA and RNA samples or cell lines from fetuses aborted decades ago. But two of the three judges on the seventh circuit appeals panel concluded that the law was no more vague than others, and that IU researchers could ask state judges to rule on whether a given action is illegal before undertaking it.
Debomoy Lahiri, an IU plaintiff, works with UW-provided fetal brain tissue to grow mixed cultures of neurons and supporting glial cells, which he uses in studies of the mechanism of Alzheimer’s disease and possible treatments. Losing access to the fetal tissue would be “devastating,” Lahiri says.
Another IU School of Medicine scientist, Zheng-Ming Ding, recently won National Institutes of Health funding to use fetal brain cultures supplied by Lahiri to study the effects of nicotine and its major metabolite, cotinine, on proteins that are intimately involved in Alzheimer’s disease.
The IU plaintiffs are concerned that the law, if it is upheld, will also extend to cell lines such as HEK-293, derived from a fetus aborted in the Netherlands in the 1970s and widely used, including at IU, to study topics ranging from ion channels in heart disease to the cancer-causing effects of chemicals. State attorneys, defending the law before the district court in 2017, wrote that they had no intention of criminalizing the use of decades-old cell lines, or of considering it a “transfer” of fetal tissues if scientists passed a beaker across a lab bench. But the appeals court majority, while upholding the law, agreed that the plaintiffs would be at “needless risk” if they relied on those assurances.
The Indiana court battle comes as President Donald Trump’s administration reviews all U.S.-funded fetal tissue research. On the state level, since 2016, Alabama, Arizona, Idaho, Louisiana, South Dakota, and Wyoming have also criminalized research on tissue from elective abortions. The state legislative moves by abortion opponents were fueled by surreptitiously taped videos released in 2015 showing Planned Parenthood officials frankly discussing providing such tissues.
“These laws are designed to stymie scientific research,” says Molly Duane, a staff attorney at the Center for Reproductive Rights in New York City, which tried unsuccessfully to block Louisiana’s fetal tissue research law from taking effect.
In Indiana, however, it’s not clear that most politicians were aware of the law’s potential for harming science. During hours of debate on the bill in the legislature, its impact on medical research was not discussed once.