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April 26, 1990

AARON LIFCHEZ, et al., Plaintiffs,

Ann Claire Williams, United States District Judge.

The opinion of the court was delivered by: WILLIAMS


 Dr. Lifchez represents a class of plaintiff physicians who specialize in reproductive endocrinology and fertility counselling. Physicians with these medical specialties 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 para. 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, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), Carey v. Population Services International, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (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.


 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.

 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, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (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, 83 L. Ed. 888, 59 S. Ct. 618 (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, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (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, 31 L. Ed. 2d 110, 92 S. Ct. 839 (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 (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. This is an especially dangerous consequence of vague statutes that encroach upon constitutional rights. Colautti v. Franklin, 439 U.S. 379, 391, 58 L. Ed. 2d 596, 99 S. Ct. 675 (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, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (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 ("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.

 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. *fn2" Smith v. Goguen, 415 U.S. at 574; Lanzetta v. New Jersey, 306 U.S. at 453.

 It is difficult to know where along this broad spectrum of possible meanings for "experiment" to fit the medical procedures performed by Dr. Lifchez and his colleagues. These procedures can be roughly divided into three kinds: diagnostic, in vitro fertilization and related technologies, and procedures performed exclusively for the benefit of the pregnant woman. The statute's vagueness affects all three kinds of procedures, but in different ways.

 Diagnostic Procedures

 One of the more common procedures performed by reproductive endocrinologists is amniocentesis. Amniocentesis involves withdrawing a portion of the amniotic fluid in order to test it for genetic anomalies. It is performed on women considered to be at risk for bearing children with serious defects. Plaintiff's Brief in Support of Summary Judgment at 15 n. 16. The purpose of the procedure is to provide information about the developing fetus; this information is often used by women in deciding whether or not to have an abortion. Although now routinely performed, amniocentesis could be considered experimental under at least two of Dr. Lifchez' definitions: it could be classified as pure research, since there is no benefit to the fetus, the subject being "experimented" on; it could also be experimental (as defined by the American Fertility Society) if the particular practitioner or clinic were doing it for the first time.

 Amniocentesis illustrates well the problem of deciding at what point a procedure graduates from "experimental" to routine. Does this occur the fifth time a procedure is performed? the fiftieth? the five hundredth? the five thousandth? Shortly before the Illinois Abortion Law was first passed in 1975, amniocentesis was considered an experimental procedure by most definitions of the term. Plaintiff's Brief in Support of Summary Judgment at 16 n. 16. See National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, Research on the Fetus; Appendix, "An Assessment of the Role of Research Involving Living Human Fetuses in Advances in Medical Science and Technology" at 15-25 through 15-45. And yet ten years later, the legislature engaged in the following colloquy:

Didrickson: Okay then, according to this information sheet that I have in front of me, what may be affected in addition to that rubella vaccination on the aborted fetus situation would be the 'corrian' biopsy which replaces potentially amniocentesis in the future?
O'Connell: This is in no way to affect amniocentesis or that process.
Didrickson: So, that's a third category it would not affect?
O'Connell: Well, that presupposes that amniocentesis is an experimentation on a fetus.
Didrickson: And you are saying that amniocentesis in, vitro fertilization . . . preservation would not be affected by your Bill?
O'Connell: That's correct.

 Exhibit A, p. 120. Although the non-experimental status of amniocentesis in 1985 may be established through this reference to legislative intent, the above dialogue underscores the problem of refusing to define the key terms in § 6(7) in the context of the rapidly growing field of reproductive endocrinology. Dr. Lifchez can hardly be expected to know which of his medical activities would be illegal now if he were to look back on the quick evolution of amniocentesis from (very likely) illegal experiment in 1975 to explicitly endorsed "process" in 1985. Statutory language that embraces both of these possibilities simply "has no core" of meaning and forces people of common intelligence to guess at what the law forbids. Smith v. Goguen, 415 U.S. at 574, 578. For this reason, it is unconstitutionally vague.

 The court is keenly aware that, because of the meteoric growth in reproductive endocrinology, any classification of a particular procedure as either "experimental" or "routine" could easily be out-of-date within six months. The same can be said for any statistics which might support a particular classification: they could be downright quaint upon publication of the next study. The court's rationale does not depend on an accurate scientific classification of amniocentesis or any other technique. If amniocentesis is no longer "experimental," then some variation of it (or some other procedure) will be. Whether or not any particular procedure is experimental or routine is not as important as the fact that many procedures begin as the former and become the latter. It is this process that counts, not the classification at any particular point in time.

 For this reason, the court has not ventured very far from the parties' briefs, but has relied instead on their undisputed descriptions of different procedures and also on the medical authorities that are cited in support of those descriptions. That the technology in the field may outstrip the parties' briefs -- and this court's opinion -- does not change the fundamental progression from "experiment" to "routine" in much scientific endeavor. It also does not relieve lawmakers of the responsibility for recognizing the inevitability of this progression, and particularly describing those actions that are unlawful. Failure to do so results in the anomalous situation of amniocentesis. The very same procedure that is explicitly endorsed today would have been illegal ten years earlier -- the illegality resulting from a legislative insistence on using a protean term such as "experiment." A statute is unconstitutionally vague if the mere passage of time can transform conduct from being unlawful to lawful.

 The development of chorionic villi sampling further illustrates this problem. Chorionic villi sampling involves inserting a catheter through the cervix in order to take a biopsy of the chorionic tissue, tissue surrounding the fetus. As with amniocentesis, it is a diagnostic procedure designed to give information about the developing fetus; this information is often used by a pregnant woman in deciding whether or not to have an abortion. Chorionic villi sampling differs from amniocentesis in that it yields different genetic information, it can be performed earlier in the pregnancy, and, at least at present, it is riskier to the fetus. There is also little dispute that it is experimental. Plaintiff's Brief in Support of Summary Judgment at 16. Considering all this, and especially given that chorionic villi sampling would only rarely be therapeutic to the fetus (if, for example it led to in utero surgery), it is surprising to see Representative O'Connell, in the passage quoted above, apparently exempting this procedure from the reach of § 6(7): "Didrickson: . . . according to this information sheet . . . what may be affected would be the 'corrian' biopsy which replaces potentially amniocentesis in the future? O'Connell: This is in no way to affect amniocentesis or that process." This response is both surprising and confusing, since the language of the statute, as well as either of Representative O'Connell's own definitions of experiment ("to examine the validity of a hypothesis or to determine the efficacy of something previously untried") can quite easily include chorionic villi sampling, at least at its present stage of development. Once again, even if he were to study the statute and read the legislative debates, Dr. Lifchez could not know with any certainty what conduct is being forbidden.

 In Vitro Fertilization and Related Technologies

 Many other procedures that Dr. Lifchez performs on his patients could fall within the ambit of § 6(7). Among these are in vitro fertilization and the many techniques spawned through research into in vitro fertilization. The difficulty posed by these procedures is not just whether or not they are "experimental," but whether they are "therapeutic to the fetus." The statute's failure to define this phrase contributes to its vagueness. In vitro fertilization itself involves removal of a mature ovum, placing it in a petri dish or test tube (in glass, that is, in vitro), fertilizing it, and returning the embryo to the woman's uterus where it matures into a fetus. In vitro fertilization itself is explicitly permitted by the statute. Related reproductive technologies are less certain. Embryo transfer, for example, involves removal of an embryo from one woman's uterus and placing it in the uterus of a second woman. The variations on this basic technique are considerable. A donated egg could be fertilized in vitro (with a partner's or a donor's sperm), be placed in a second woman's uterus to gestate for five days, and then be flushed out for implantation in the woman trying to get pregnant. Lori B. Andrews, Medical Genetics: A Legal Frontier at 89-90 (American Bar Foundation 1987) That this procedure is experimental is undisputed. Whether it is "therapeutic to the fetus" (actually, embryo, but legislators and courts commonly -- and incorrectly -- elide the two) is more complicated. Certainly, it can be argued that it is not therapeutic. Removing an embryo from one woman's uterus, where it is gestating, for implantation in another woman, may be therapeutic for the woman trying to get pregnant, but it is not necessarily therapeutic for that embryo.

 Perhaps this particular technique is protected by § 6(7)'s exception for in vitro fertilization. ("Nothing in this subsection (7) is intended to prohibit the performance of in vitro fertilization.") But consider a slight variation on the procedure, where fertilization occurs in vivo, that is, in the uterus of the second woman. See Andrews, Medical Genetics at 163. There is ample evidence in the legislative debates that the legislature did not intend to prohibit technologies that might result in the birth of healthy children: "The in vitro fertilization process will improve but it will still remain in vitro fertilization and it is not this intent . . . the intent of this Bill to, in any way, diminish that very valuable medical wonder . . . We're not trying to, in any way, jeopardize the legitimate purposes of in vitro fertilization or amniocentesis or anything designed to enhance the birth of children by parents who otherwise could not have had those children." Exhibit A, pp. 83, 123. However, in vivo fertilization is not the same as in vitro fertilization, and the legislature chose to exempt only the latter from its ban on experimental procedures on the embryo.

 It is of course a long-established rule of statutory construction that "the enumeration of specific exclusions from the operation of a statute is an indication that the statute should apply to all cases not specifically excluded." Matter of Cash Currency Exchange, Inc., 762 F.2d 542, 552 (7th Cir. 1985). This is part of the answer to Defendant Hartigan's claim that by not defining the key terms in § 6(7), the legislature allowed for "flexibility" in a growing field, rather than having a laundry list of exceptions that would be bound to omit something. The rest of the answer to this claim is that "flexibility" is always the defense for a statutory scheme that permits arbitrary and discriminatory enforcement of the law. Papachristou v. City of Jacksonville, 405 U.S. at 170-71. This does not change the principle that "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." Smith v. Goguen, 415 U.S. at 575. Since in vivo fertilization and other non-in vitro variations on embryo transfer are not explicitly exempted by § 6(7), they are subject to the same objection mentioned above: they are therapeutic for the woman trying to get pregnant and unnecessarily risky for the developing embryo.

 Other procedures give rise to this and similar objections. In genetic screening of in vitro embryos, one cell of an eight-cell embryo is removed for testing, while the rest are frozen. If the genetic screening on the single cell is negative, the remaining seven cells can be gestated to produce a child. Andrews, Medical Genetics at 87. This experimental procedure is undisputedly non-therapeutic to the embryo, and although it could fall within the statute's in vitro exception, that exception speaks to fertilization, not ...

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