## Facts

- A physician specializing in reproductive endocrinology and fertility counseling filed a federal action on behalf of a certified class of similarly situated physicians who treated infertile couples seeking to conceive.
- Plaintiffs sought declaratory and injunctive relief against Illinois’s Attorney General and the Cook County State’s Attorney to prevent enforcement of a criminal provision in the Illinois Abortion Law.
- The challenged provision, § 6(7), made it a Class A misdemeanor to “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,” and added that “[n]othing in this subsection (7) is intended to prohibit the performance of in vitro fertilization.”
- The statute did not define the key terms “experiment” (or “experimentation”) and “therapeutic,” leaving uncertainty about what medical practices would trigger criminal liability.
- Plaintiffs’ medical practices and related techniques included in vitro fertilization (IVF) and procedures associated with infertility treatment and conception, as well as diagnostic and laboratory techniques connected to embryo transfer and genetic testing.
- Plaintiffs contended that the statute’s undefined terms created a risk that routine fertility-related procedures, research-based methods, or diagnostic testing could be labeled non-therapeutic “experimentation,” even where intended to help patients conceive or make informed reproductive decisions.
- Both sides filed cross-motions for summary judgment, agreeing there were no genuine disputes of material fact and that the case turned on constitutional questions.

## Issues

1. Whether § 6(7) of the Illinois Abortion Law is void for vagueness under the Fourteenth Amendment’s Due Process Clause because physicians cannot determine what conduct is prohibited by the terms “experiment” and “therapeutic.”
2. Whether § 6(7) violates constitutional protections for privacy and reproductive freedom by deterring or restricting medical care and information connected to decisions about whether and when to bear children.

## Decision

- The court granted plaintiffs’ motion for summary judgment and denied defendants’ motion.
- The court declared § 6(7) unconstitutional and permanently enjoined the defendants from enforcing it.
- On vagueness, the court held the statute failed to provide fair notice to physicians and created an unacceptable risk of arbitrary or discriminatory enforcement, particularly given how quickly medical procedures can change status from research-oriented to standard practice.
- On privacy and reproductive freedom, the court held the statute’s criminal sanctions interfered with protected reproductive decision-making by chilling physicians from providing fertility-related services and diagnostic information used in reproductive choices.
- (Subsequent history noted for context: the decision was affirmed by the Seventh Circuit, and certiorari was denied.)

## Legal Principles

- A criminal law is unconstitutionally vague when it does not give people of ordinary intelligence a reasonable opportunity to know what is prohibited and allows enforcement based on unguided discretion.
- Vagueness concerns carry special weight where a statute threatens to deter constitutionally protected conduct, including intimate and reproductive decisions and the medical services tied to those decisions.
- Undefined medical terms that turn criminal liability on uncertain professional classifications—especially in fields where clinical methods change quickly—can violate due process because legality cannot be determined in advance with reasonable certainty.
- Constitutional privacy protections recognized in cases such as *Roe v. Wade* and *Carey v. Population Services International* include decisions about whether and when to have children; state action that deters access to medical care or diagnostic information bearing on those decisions can violate the Constitution.

## Conclusion

In *Lifchez v. Hartigan*, the district court held that Illinois’s ban on non-therapeutic “experimentation” on a fetus produced by fertilization was unconstitutional because its core terms were undefined and left physicians unable to predict when ordinary infertility treatment, IVF-related techniques, embryo handling, or diagnostic testing might be prosecuted, and because the resulting threat of criminal sanctions interfered with constitutionally protected reproductive choice; the court granted summary judgment for plaintiffs and permanently barred enforcement of § 6(7).


Lifchez v. Hartigan, 735 F. Supp. 1361 (N.D. Ill. 1990)