Statutory Interpretation

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7^th Circuit Court of Appeals

Case Name: Trustees of Indiana University, et al. v. Terry Curry, et al.

Case No.: 18-1146; 18-1247; 18-1308

Officials: EASTERBROOK, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Statutory Interpretation

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.

We conclude that the district court should have entered judgment in defendants’ favor. The injunction is reversed, and the case is remanded for that purpose.

Reversed and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.