The Institute for Justice — one of the top libertarian public interest law firms — is filing the challenge today. Here are the Complaint and a short video; and here is the IJ press release:
Filed Monday, October 26, 2009, in federal court in Los Angeles, Flynn v. Holder challenges the federal ban on compensating bone marrow donors. Represented by the Institute for Justice, the plaintiffs are cancer patients and their families, a renowned bone marrow specialist, and a California nonprofit called MoreMarrowDonors.org. MoreMarrowDonors.org wants to award the most needed bone marrow donors a $3,000 scholarship, housing allowance, or gift to the donor’s favorite charity. But the National Organ Transplant Act (NOTA), 42 U.S.C. § 274e, treats giving a scholarship to a college student for donating marrow like black-market organ-selling.This makes no sense. NOTA was enacted to criminalize markets in nonrenewable solid organs, such as kidneys. Bone marrow, however, is just immature blood and, like blood, replenishes itself after donation. NOTA’s criminal ban, which imposes up to a five-year sentence, violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells — such as blood, sperm, or eggs — for which compensated donation is legal. The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.
Steve says:
The equal protection argument sounds like something a nonlawyer would come up with.
October 28, 2009, 5:55 pmShelbyC says:
Yeah, I like it too.
October 28, 2009, 5:58 pmMalvolio says:
Is there is a legal defense along the lines of “this law doesn’t make any sense”?
FWIW, ova (eggs) are neither renewable nor inexhaustible — it’s just that donating them doesn’t exhaust the supply any faster than not-donating.
October 28, 2009, 6:13 pmMark N. says:
Sort of in theory, but not really in practice. Substantive due process precedents hold that any restriction of liberty at all requires a “rational basis”, but almost anything even remotely plausible suffices.
October 28, 2009, 6:18 pmShelbyC says:
Depends on whether or not the judge likes the law. Remember Reinhart found no rational basis for excluding retired cops from a ban on assault weapons. There’s plenty of remotely plausible bases for that.
October 28, 2009, 6:21 pmMike McDougal says:
The rational basis standard needs some teeth.
October 28, 2009, 6:24 pmCan't find a good name says:
Why doesn’t Congress just amend the National Organ Transplant Act to remove the restriction on payments for marrow cells? It doesn’t sound like that would be controversial.
October 28, 2009, 6:24 pmSteve says:
The rational basis standard needs some teeth.
But only when applied to a law I disagree with, naturally!
October 28, 2009, 6:43 pmShelbyC says:
OK, I actually read the arguement. Speaking as a nonlawyer, I can safely say no nonlawyer would come up with that.
October 28, 2009, 6:49 pmBC says:
Better question: Why doesn’t Congress just repeal NOTA altogether?
Answer: Because (a) Democrats are instinctively hostile to market solutions despite the countless lives lost as the predictable result of artificial shortages that laws like NOTA produce; and (b) Republicans think that it’s just a short jump from repealing NOTA to some Gattaca-esque dystopia where we raise clones for organ harvesting.
October 28, 2009, 6:53 pmSteve says:
Perhaps it’s a great argument and the framing in this press release is just horrible, but it’s very hard to read the Equal Protection Clause to require that one class of renewable or inexhaustible cells must be treated just like every other class of renewable or inexhaustible cells. The substantive due process argument is at least plausible.
October 28, 2009, 6:54 pmMike McDougal says:
My toothed rational basis doesn’t discriminate.
October 28, 2009, 6:56 pmloki13 says:
Uh, I agree with Steve here. How’s this- this here law violates equal protection, cuz it treats fishin’ licenses like huntin’ and wrasslin’ licenses. Everyone knows fishin’ and huntin’ and wrasslin’ go together. That’s just arbitrary what the gummint’s doin’!
(On the merits, I don’t think the government should criminalize the sale of bone marrow. But that’s what democracy is for. Get your legislators to change the law.)
October 28, 2009, 6:57 pmHoward Bowman, MD says:
I simply can’t understand the law that prohibits the donor (or the donor’s estate) from benefiting from the donation.
EVERYONE else involved (the patient, the hospital, the physicians, society in general) is made better by the donor’s act, and he gets nothing….So of course donated organs are scarce (unless you’re a celeb needing a liver).
October 28, 2009, 7:16 pmGM Roper says:
Completely off topic (well, maybe not so much)when my first wife passed away some 14 years ago, she wanted, and had her organs donated. To her, they were now useless, but even had payment been offered it would have been refused. I and our daughter are happy that some folks had new leases on life and sight because of her generosity.
Educate America folks, organ donation saves lives.
October 28, 2009, 7:32 pmDan says:
The “renewable or inexhaustible cells” argument is garbage on the facts. (Forget the fact that it’s a really odd equal protection argument, too.) As another commenter pointed out, ova are neither. Liver cells, on the other hand, are renewable, and covered by NOTA.
The better distinction, ova notwithstanding, is whether a doctor need be present to extract the donor cells. Blood, sperm, and hair all fall under that umbrella, and assuming you believe that a market solution to organ donation, it makes sense to draw the line at the amount/severity of medical services needed to make an effective donation.
October 28, 2009, 7:49 pmShelbyC says:
Nope. The argument sounds like it was written by lawyer who doesn’t understand equal protection, not by a nonlawyer who doesn’t understand it.
Agree with you on the merits though.
October 28, 2009, 7:49 pmChrisTS says:
BC:
Simpler answer:
because Dems and Repubs both worry about the implications for social morality, but the Dems worry about materialism and over-commodification and the Repubs worry about degrading the value of life [understood in a certain way].
October 28, 2009, 8:00 pmloki13 says:
ShelbyC,
A lawyer realizes that you just can’t say “Equal Protection” and have the government treat everything the same. Ask a 5 year old why they can’t get a driver’s license. Ask a traveler why they can’t carry more than 5oz container on an airplane. Ask someone who makes $100,000 why some of their money is taxed differently than other parts of their money.
Harrumph. Government has to make choices. Only some choices are “bad” ones that violate equal protection.
October 28, 2009, 8:05 pmDebauched Sloth says:
The critiques of the plaintiffs’ claims, especially equal protection, is amusing. Like listening to a bunch of National Guardsmen critiquing a boat crew of SEALs on their surf landing technique. Out of curiosity, have any of the critics actually litigated an equal protection challenge under rational basis review? IJ specializes in it. Doesn’t make them right of course, but it’s probably safe to assume they have a pretty good idea what they’re doing, no?
October 28, 2009, 8:06 pmBC says:
ChrisTS:
I think that’s an accurate description of Republicans’ concerns, but I don’t think it’s quite apt with respect to the Democrats’. To wit: I don’t think Democrats give a hoot about materialism and over-commodification; rather, I think they’re worried that a market for organs would produce outcomes that they didn’t approve of, such as a wealthy lifelong smoker getting a lung transplant ahead of Little Suzie afflicted with cystic fibrosis.
October 28, 2009, 8:37 pmOren says:
A small Pacific nation could make a killing by offering these operations under more market-friendly terms. At some point, paying $50,000 to fly the patient and donor halfway around the world has to be cheaper (and more productive) than paying lawyers or lobbying Congress.
Not that I don’t appreciate the Institute for Justice for their intentions (although, as has been pointed out, the execution is less than inspiring), but I feel like we could do much more and better exploring more unconventional options.
October 28, 2009, 8:54 pmShelbyC says:
Point taken.
October 28, 2009, 9:16 pmloki13 says:
Please point me to their victories in litigation under rational basis using the EPC. I’m not saying this to be snarky- I’d really like to know. I looked at the complaint, and other than saying that it is arbitrary and capricious, I’m not seeing any meat (or marrow) to it.
October 28, 2009, 9:21 pmTGGP says:
I agree with Can’t think of a good name. I applaud IJ for uncovering such low-hanging fruit. Maybe there should be a libertarian organization dedicated to just finding mistakes in legislation whose amending would not be unpopular among Cogresscritters.
October 28, 2009, 10:02 pmreadery says:
Last time I read it the Equal Protection Clause protects persons, not body organs. Unless there’s a claim that persons are being treated differently, there’s no equal protection claim. It simply doesn’t cover every distinction the complainer happens not to like, only distinctions between persons.
There are obvious rational bases for treating the two differently. There are arguments for a completely market-based approach and arguments for keeping the market completely out of human tissue donations. Congress compromised between these two different ideologically pure approaches to the issue. Compromises are essentially always rational whenever both sides have a point. It doesn’t matter where in the middle Congress happened to draw the line — compromise involves drawing a line, the line has to be somewhere, and whenever there’s a line someone can always make a case that it would make more sense for the line to be an inch to the right or the left.
The complaint suffers from place the issue in a two-point context – Congress’ approach vs. the complaintants preferred approach, presented as if these were the only two possible approaches in the universe. One can virtually always find an approach that can be presented as more rational than the law in the current state. But placed in a different context, it is easy to see it as a compromise between two different ideologies, and in that context it is obviously rational.
One could make a case that making the speed limit 40 vs. 30 would result in greater convenience or a lower accident loss respectively and then claim the other approach is irrational. But once one realizes that every speed limit represents some imperfect compromise between convenience and safety, then it becomes clear that every speed limit is rational. Judges have no more basis for saying where the line should be than legislators. Same with the line Congress drew for human tissue donations.
October 28, 2009, 11:01 pmDebauched Sloth says:
loki13 says: Please point me to their victories in litigation under rational basis using the EPC…
Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)
Cornwell v. Hamilton, 80 F. Supp.2d (S.D. Cal. 1999)
Brown v. Barry, 710 F. Supp. 352 (D.D.C. 1989) (litigated by IJ co-founder Clint Bolick shortly before IJ’s creation)
IJ typically asserts both substantive due process and equal protection claims in rational basis cases because some judges just cannot seem to get their minds around the equal protection approach, whereas other judges either can’t get their minds around or simply reject outright the whole concept of substantive due process. But the case law makes clear that the standard of review is the same either way, so it’s really a matter of giving the judge different ways of looking at the same basic problem — legislation so obviously devoid of any genuine public policy justification that even the courts will not put up with its stink. And that’s pretty stinky.
As Judge Boggs said (quoting another Sixth Circuit case) in striking down a Tennesse casket sales law in Craigmiles, the state’s justifications “come close to striking us with the force of a five-week-old, unrefrigerated dead fish, a level of pungence almost required to invalidate a statute under rational basis review.”
October 29, 2009, 1:32 amDirk D says:
Seems like there could be a disparate impact claim as well. Minorities and those of mixed racial backgrounds are much less likely to be able to find a match than caucasians. By arbitrarily discouraging BM donation, minorities are impacted to a greater extent.
October 29, 2009, 9:12 amMore Marrow Donors » Blog Archive » Using Economics to Sove Marrow Shortage says:
[...] On the Volokh Conspiracy, [...]
October 29, 2009, 10:26 amMalvolio says:
A person who needs marrow would certainly feel discriminated against compared to person who needs blood. Of course, that every distinction in law eventually affects one person more than some other person, so my interpretation would expand “equal protection” to mean “every law must make sense” and we can’t have that…
October 29, 2009, 1:12 pmloki13 says:
Debauched Sloth-
Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)
Other than a throwaway to Cleburne, and that it affirms (in general) that it doesn’t withstand rational basis scrutiny under the 14th Am., I don’t see it as actually being about the EPC as distinct from SDP. The court treats them the same. In addition, this reasoning is explicitly rejected by other courts (see the 10th Cir.).
The Cornwell v. Hamilton case, as I remember, also had to do with disparate impact on minority hairdressers… but I can’t find the cite for that.
Can’t look up the last case, and won’t bill a client for that. *smile*
So, what do we have?
1. Courts that confuse SDP and EPC rational basis analysis, and just kind of toss them together.
2. A few outlier decisions that bootstrap Romer and Cleburne, and are explicitly rejected in other jurisdictions.
3. An interesting tension, from my point of view, between conservatives who wish to overthrow democratically elected laws, and those that do not want to bother with them even if they are “uncommonly silly”.*
Still, I asked and you answered. Thank you!
*This tension is the same for liberals, except you replace economic liberties with civil liberties.
October 29, 2009, 7:07 pmloki13 says:
Who do you want o decide if every law “must make sense”? Legislators, or judges?
October 29, 2009, 7:08 pmreadery says:
If judges really could throw out laws if they thought they didn’t make sense, why would the constitution have provided for a legislature or elections? They’d be completely useless and providing for them would make no sense. After all, whenever the legislature and the judge disagreed about what made sense for a situation, the judge would simply impose his or her view. So why not simply have the judge do that in the first place? Why bother bother to have a legislature?
Given two judges, one tolerant of others’ views and one convinced of his superiority and inclined to belief that anyone who disagrees with him is an idiot, the standard gives the second all the power. Judges have no incentive whatsoever to be tolerant or respectful of others’ views. The more narrow-minded they are, the less capable of seeing those who disagress with them as possibly making sense, the more power they have.
Do we really want a system that selects for the most bigoted and self-centered and makes them all-powerful?
October 30, 2009, 2:03 amreadery says:
I’m not sure libertarians should be quite so quick to throw stones here.
As an example, the price of oil went from about $147 to a little over $30 in a few months last year. From the point of view of an anti-market observer unable to get legislatures to adapt government-set pricing and wishing to use the courts to achieve this goal, this and many similar examples provide lots of low-hanging fruit opportunities. Just go into court, give the two different prices and the two dates, explain that neither the supply not the societal demand for oil changed in this period remotely enough to rationally justify such a disparity, and ask the court to strike government’s acceptance of markets as a basis for pricing and hold the Due Process Clause requires using a rational, i.e. government-set, pricing basis. Low-hanging fruit like this abounds in every functioning complex system; it’s very easy for a person fundamentally opposed to the system’s basis to find low-hanging fruit which could serve as a basis for striking the system down in part if not in whole.
The reason libertarians find outlawing selling bone marrow irrational is that they find outlawing market approaches irrational, and if one comes in from that perspective one can find a place where a compromise results creates an anomaly. The difficulty is that market-based approaches, like the pricing example above, contain similar anomalies: if one doesn’t like markets, one will think the market price irrational quite often, and sometimes obviously and irksomely so.
So a little thought shows that the very principle market supporters propose to use to justify requiring markets could, if applied fairly and neutrally, equally well be used to justify banning them. If one wants markets to be considered constitutional, one has to have a concept of “rational basis” sufficiently flexible to accommodate the fact that markets sometimes produce anomalous-seeming results, as last year in particular has demonstrated. A concept of “rational basis” cautious enough to avoid destroying markets will probably be cautious enough to avoid destroying this law.
October 30, 2009, 2:30 pmThe Volokh Conspiracy » Blog Archive » Jeff Rowes Guest-Blogging This Week on the Bone Marrow Compensation Case says:
[...] Rowes of the Institute for Justice will be guest-blogging this week on the lawsuit I blogged about Wednesday. As I mentioned, quoting the press release, Filed Monday, October 26, 2009, in federal court in Los [...]
November 1, 2009, 5:05 pmThe Volokh Conspiracy » Blog Archive » Jeff Rowes Guest-Blogging This Week on the Bone Marrow Compensation Case says:
[...] Rowes of the Institute for Justice will be guest-blogging this week on the lawsuit I blogged about Wednesday. As I mentioned, quoting the press release, Filed Monday, October 26, 2009, in federal court in Los [...]
November 1, 2009, 5:05 pmThe Volokh Conspiracy » Blog Archive » Jeff Rowes Guest-Blogging This Week on the Bone Marrow Compensation Case says:
[...] Rowes of the Institute for Justice will be guest-blogging this week on the lawsuit I blogged about Wednesday. As I mentioned, quoting the press release, Filed Monday, October 26, 2009, in federal court in Los [...]
November 1, 2009, 5:05 pm