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Indiana University on Wednesday challenged a new state abortion law in federal court, arguing it restricts academic freedom by criminalizing the acquisition or transfer of fetal tissue used for research.
The move stands out because the university is challenging the actions of the state that supports it. The dispute also comes at a time when many state and federal legislators are proposing laws to curtail abortion. And it arrives as lawmakers scrutinize fetal tissue research in the wake of a series of controversial videos released in 2015 showing Planned Parenthood officials discussing the use of fetal tissue.
The Indiana law in question was approved as House Bill 1337 in March, and it goes into effect at the beginning of July. Its provisions include requiring miscarried and aborted fetuses to be buried or cremated. Other parts of the law prohibit individuals from acquiring, receiving, selling or transferring fetal tissue. It makes the transfer or collection of fetal tissue a felony punishable by up to six years in prison.
Supporters of the law have argued it is a moral move affirming the value of human life. But IU leaders claim it leaves the university in an untenable position. The university legally obtained fetal tissue for important research, they said. Yet the law would leave it trapped with that tissue and unable to transfer it, putting its researchers at legal risk.
The law would also prohibit any researchers from obtaining additional fetal tissue for future needs.
Indiana is arguing the law is unconstitutionally vague and burdensome. The university’s complaint also said the law violates the First Amendment academic freedom rights of Debomoy Lahiri, a professor of psychiatry and a primary investigator for its Stark Neurosciences Research Institute in Indianapolis. IU and Lahiri conduct Alzheimer’s disease research using mixed cell cultures and components like RNA and DNA derived from fetal tissue.
Their projects include research funded by the National Institutes of Health, which requires researchers to retain samples they use, IU said in its complaint. The NIH requires researchers to share those samples upon request so that their work can be verified. But that would mean transferring fetal material, making it impossible for IU to comply with both the new law and NIH regulations, the university said.
IU received $187 million last year in NIH research grants but does not know the exact value of grants that involve fetal tissue. The law could force the university to refund millions of dollars from those grants, IU’s complaint stated. The university also objected to the possibility of its researchers being prosecuted.
“Even were Dr. Lahiri to stop doing his research in the state of Indiana as a result of the enrolled act, he runs the risk that the mere act of transferring his research to another institution would constitute a felony,” the university’s suit said.
IU also argued that it is unable to determine which of its research activities are prohibited by the new Indiana law. The university has some biologics that have been stored frozen for years, and it would be impossible to determine if they were derived from fetal tissue, it said in its complaint. Further, the university argued the new law could slow the pace of research, prevent breakthroughs and dissuade researchers from coming to Indiana.
“We don’t do research just for the hell of it,” said Fred Cate, IU’s vice president for research.
“We do new research because it leads to new discoveries and creations, which benefit peoples’ lives,” Cate said. “If we are told by state law that we cannot use certain tools in that research, tools that are widely used in every other state, that are professionally acceptable, that are ethically acceptable, then we are hurting the people of the state of Indiana. We’re hurting the people who benefit from this research, and we’re hurting the people who do that research.”
The fetal tissue used in IU research is received from the Birth Defects Laboratory at the University of Washington, according to its lawsuit. Such tissue comes from abortions and miscarriages.
IU filed its request for an injunction the day after a federal judge said it could not intervene in another complaint filed last month by Planned Parenthood of Indiana and Kentucky. U.S. Magistrate Judge Debra McVicker Lynch denied the university’s request to join that complaint on the grounds that it raised issues separate from Planned Parenthood’s case. But she also invited IU to file its own lawsuit.
The move to challenge the law is unusual, acknowledged Margie Smith-Simmons, an IU spokeswoman.
“By challenging portions of Indiana House Enrolled Act 1337, Indiana University is taking an extremely rare stance, and one the university would prefer not to take,” she said in the statement. “But the university felt compelled to do this in an effort to protect its researchers from criminal prosecution, to protect the research enterprise as a whole and to protect the research that has the potential to save thousands of lives, if not more.”
The legislation’s author, Republican Representative Casey Cox, declined a request to comment through an Indiana House Republican Caucus spokeswoman. Indiana Governor Mike Pence did not immediately return a request for comment.
But Pence, a Republican, praised the act when he signed it. The governor called the legislation a “comprehensive pro-life measure that affirms the value of all human life.” The act contains a number of provisions focused on abortion but not directly on fetal tissue. It prohibits performing an abortion if a provider knows a woman is seeking the procedure solely because of a fetus’s ethnicity or sex, or because a fetus could be diagnosed with a disability.
“I believe that a society can be judged by how it deals with its most vulnerable -- the aged, the infirm, the disabled and the unborn,” Pence said in a statement in March. “HEA 1337 will ensure the dignified final treatment of the unborn and prohibits abortions that are based only on the unborn child's sex, race, color, national origin, ancestry or disability, including Down syndrome.”
The conflict in Indiana comes as national university groups have pushed back against the tone of debate surrounding fetal tissue research. The Association of American Medical Colleges, Association of American Universities and Association of Public and Land-Grant Universities sent a letter at the end of March to the U.S. House of Representatives’ Select Investigative Panel on Infant Lives expressing concern over reports that the panel planned to subpoena researchers, graduate students and others involved in research linked to human fetal tissue.
“Many scientists and physicians are deeply concerned for their safety and that of their patients, colleagues and students in light of inflammatory statements and reports surrounding fetal tissue donation,” the letter said. “We are troubled that this information is being sought without any rules or process in place to govern how the panel will use and protect personally identifiable and other sensitive information.”
Legislative efforts could be beginning to have an impact on research across the country, said Jennifer Poulakidas, vice president of congressional and governmental affairs for the Association of Public and Land-grant Universities. This type of law can dissuade researchers from working with fetal tissue, she said. Statutes in particular states can push researchers to work in other states, she added.
Broadly, the Indiana law demonstrates the tensions that can be present between universities and legislators.
“Generally speaking, universities don’t like to see any type of research be blocked or banned or have unnecessary restrictions imposed,” Poulakidas said. “This is research that has always been legal. And these sort of state-by-state restrictions are definitely curbing institutions’ ability to participate in this research.”
