SAN FRANCISCO – Arizona’s ban on fetal tissue research was ruled unconstitutional Friday by a federal appeals court, wiping out the nation’s last surviving ban on such practices.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said the 1984 Arizona statute was too vague for doctors to know what type of medical experimentation or scientific investigation on aborted fetuses was illegal. The judges followed decisions overturning similar laws in Utah, Louisiana and Illinois.
“Individuals must be given a reasonable opportunity to discern whether their conduct is proscribed so they can choose whether or not to comply with the law,” Judge Mary M. Schroeder wrote for the court.
Research on aborted fetuses has been growing in controversy since 1993, when a ban was lifted on federal money used to study them.
The University of Nebraska, Columbia University, Harvard University, Northwestern University, Rochester University and others have studied aborted fetuses.
Anti-abortion groups claim such research is unethical and provides justification for abortions. Researchers, however, hope to find ways of preventing brain injuries through studying fetal tissue, which may help regenerate tissue damaged by Alzheimer’s and Parkinson’s disease.
Arizona’s law was challenged by the New York-based Center for Reproductive Law and Policy in 1996 on behalf of four Parkinson’s disease patients. Because of the law, they were unable to receive transplants of fetal brain tissue. Two Arizona affiliates of Planned Parenthood later joined the lawsuit.
Studies suggest some fetal tissue transplants can produce dopamine, a substance in the brain that controls voluntary movement, and effectively treat Parkinson’s. It is a progressive neurological disorder stemming from a patient’s inability to produce the substance.
“There are not any more laws that ban medical experimentation or investigation of fetal tissue,” said Bebe J. Anderson, an attorney for the Center for Reproductive Law and Policy.
Arizona’s law barred the use of aborted fetal tissue or embryo for medical experimentation or scientific or medical investigation unless to perform a “routine pathological examination” or to diagnose a maternal or fetal condition that prompted the abortion.
Arizona Right to Life President John Jakubczyk said the law was not vague and should stand.
“We’ve got judges here making opinions about the statute, which is not vague in my opinion,” Jakubczyk said.
The state also maintained the statute was clear. It argued that a doctor could avoid violating the law, which carries an 18-month sentence, by not performing any tests or procedures on aborted fetuses.
“This argument ignores the exceptions built into the statute that creates the confusion,” Schroeder wrote.
Schroeder, in upholding Arizona’s U.S. District Court Judge William Browning’s similar decision in September, said the law was unclear whether a doctor would violate the statute by performing a DNA examination on an aborted fetus to test for paternity, or to diagnose a medical condition unrelated to the patient’s decision to have an abortion.
Lawyers in Arizona Attorney General Janet Napolitano’s office were reviewing the decision, spokeswoman Pati Urias said. She said the state was considering asking the court to review its decision.
She added Arizona may consider new legislation to circumvent the panel’s ruling.
In a concurring opinion, Judge Joseph T. Sneed was the only judge to address the issue of fetal tissue research, which he said could lead to new medical innovations.
While he agreed the law should be nullified because of its vagueness, he called Arizona’s ban unjustified and said “a pregnant woman has a right to be free from state interference with her choice to have an abortion.”
The case is Forbes vs. Napolitano, 99-17372.