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Monitoring Stem Cell Research 
tests.^°° The court noted that "even medical treatment can be 
reasonably described as both a test and an experiment. This is 
the case, for example, "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. 
A third case struck down as vague the Utcih statute that 
provided that “live unborn children may not be used for 
experimentation, but when advisable, in the best medical judgment 
of the physician, may be tested for genetic defects."'®^ The Tenth 
Circuit held “(bjecause there are several competing and equally 
viable definitions, the term ‘experimentation’ does not place health 
care providers on adequate notice of the legality of their conduct. 
In a fourth case, Forbes v. Napolitano .^°^ a number of 
plaintiffs^®® challenged the constitutionality of an Arizona statute that 
criminalized medical experimentation or investigation involving fetal 
tissue from induced abortions.^®’ The statute at issue in that 
Idi A concurring judge found this analysis to be contrived and opined that 
the provision was not imconstitutionally vague. Id. at 1000 (Williams, J., 
concurring). Instead, he suggested that the prohibition was unconstitutional 
because "under the guise of police regulation the state has actually 
undertaken to discourage constitutionally privileged induced abortions." Id. 
at 1002, citing Thornburgh v. American College of Obstetricians and 
Gynecologists . 106 S. Ct. 2169, 2178 (1986). The concurring judge pointed 
out that the state had "failed to establish that tissue derived from an induced 
abortion presents a greater threat to public health or other public concerns 
than the tissue of human corpses [upon which experimentation is allowed]." 
Id. Moreover, the state had not shown a rational justification for prohibiting 
experimentation on fetal tissue from an induced abortion, rather than a 
spontaneous one. Id. 
Margaret S. v. Edwards . 794 F.2d 994, 999 (5th Cir. 1986). 
Id, 
Utah Code Aim. § 76-7.3-310. 
Jsme L. V. Bangerter . 61 F.3d 1493, 1501 (10th Cir.), rev*d on other grounds 
sub nom. . Leavitt v. Jane L. . 518 U.S. 137 (1996). 
2000 U.S. App. LEXIS 38596 (9th Cir. 2000). 
Plaintiffs include numerous doctors and individuals suffering from 
Parkinson’s disease who caimot receive transplants of feted brain tissue 
because of the statute. 
2000 U.S. App. LEXIS 38596 (9th Cir. 2000). 
PRE -PUBLICATION VERSION 
