I’m delighted to report that Jeff 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 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.
I’m much looking forward to seeing Jeff’s thoughts on the subject.
Josh Blackman says:
Welcome Jeff! I am really looking forward to seeing your thoughts on the equal protection, and substantive due process violations of NOTA.
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November 1, 2009, 5:16 pmJeff Rowes Guest-Blogging This Week on Volokh on Bone Marrow Compensation Case « Josh Blackman's Blog says:
[...] 1, 2009 — Josh Blackman Everyone be sure to check out the Volokh Conspiracy this week. Jeff Rowes Guest-Blogging This Week on the Bone Marrow Compensation Case Filed Monday, October 26, 2009, in federal court in Los Angeles, Flynn v. Holder challenges the [...]
Off Kilter says:
As a physician, I’m not clear that marrow even falls under the auspices of NOTA. As I read it, the prohibition is for payment of “valuable consideration” for “an organ or any subpart thereof”. A standard definition of “organ” is “a part of an organism that is typically self-contained and has a specific vital function, such as the heart or liver in humans.”
Bone marrow is not “self contained” and does not have a “specific” but rather multiple functions. Is marrow a “subpart” of an organ? While bone marrow is part of the osseous system, the bones do not constitute one organ, and marrow-like functions occur in the liver, spleen, and lymph nodes (altogether encompassing the reticuloendothelial system). So it’s not at all clear (to me) that marrow even falls within the province of the law as written.
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November 1, 2009, 5:26 pmShelbyC says:
Pretty brave, given the way some of the guest posters get treated around here...
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November 1, 2009, 5:29 pmJohn Moore says:
I suspect the harm from federal prohibition of true organ donation far exceeds the benefits.
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November 1, 2009, 6:09 pmThe Volokh Conspiracy » Blog Archive » Jeff Rowes Guest-Blogging … « Blogging says:
[...] View post: The Volokh Conspiracy » Blog Archive » Jeff Rowes Guest-Blogging … [...]
ricky says:
“I suspect the harm from federal prohibition of true organ donation far exceeds the benefits.”
Indeed. It’s amazing that the baby-killers never speak up about this.
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November 1, 2009, 6:14 pmcirby says:
I just wonder:
Who owns me?
If the government can prevent me from selling a renewable part of my own body — something that causes no appreciable long-term harm — what else do they have lien over?
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November 1, 2009, 6:33 pmdearieme says:
Are you using “compensation” as a euphemism for “pay”, or do you have something else in mind?
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November 1, 2009, 6:41 pmShelbyC says:
The govt owns you. Geez, you thing the organ donation is bad, they can prevent you from selling the right to rub against certain parts of your body.
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November 1, 2009, 6:43 pmSasha Volokh says:
dearieme: “Compensation” isn’t really a _euphemism_ for “pay”; it’s how payment is usually referred to in legalese. So why not use “pay”? It probably wouldn’t make any difference, but one might argue that “compensation” is more general (and therefore more correct) than “pay” because to some people, “pay” connotes money, while “compensation” is more general, including donations to someone else (a charity), donations in kind (painting your house, sex) (note that a scholarship could fall under either of these two categories), and lots of other things.
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November 1, 2009, 7:00 pmPaul Hsieh, MD says:
As a physician, I’m delighted that IJ is taking on this cause. Individuals should be permitted to engage in voluntary trades to their mutual benefit, provided there’s no force or fraud. In this context, it means permitting a free and open market for the sale of bone marrow (and eventually other organs). Repealing the current ban could save thousands of lives annually.
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November 1, 2009, 7:25 pmShelbyC says:
Painting your house or sex? :-)
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November 1, 2009, 7:27 pmArthurKirkland says:
I recall a fine film that explored this very philosophical question.
It was entitled “Deuce Biglow: Male Gigolo”
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November 1, 2009, 7:32 pmPatHMV says:
I’m sympathetic to the policy they advocate, because I agree that bone marrow is much more like blood, semen, and the like which are renewable by the body. But I don’t see any constitutional grounds for their challenge. It really sounds like the only argument they make for its unconstitutionality is “we disagree with this policy decision, so it must violate the constitution.”
Still, I look forward to seeing the argument presented in more detail. Be happy to help him polish the arguments by making a vigorous opposition...
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November 1, 2009, 7:38 pmMike McDougal says:
Compensation is broader than pay. Compensation generally refers to good stuff you like. Pay is almost always money.
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November 1, 2009, 7:46 pmTNeloms says:
PatHMV, my first impression is that I agree with you, and I’m curious what the arguments will be.
I’m sure there’s a reasonable argument behind this, but it almost sounds as if the *substances* aren’t protected equally, and I don’t understand why this translates into people not being protected equally.
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November 1, 2009, 7:58 pmSubliminal says:
What a cool post thanks for sharing
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November 1, 2009, 8:07 pmOff Kilter says:
“violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells”
It’s even more irrational than that. Liver segments can regenerate. Ova are fixed in number.
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November 1, 2009, 8:52 pmPatHMV says:
Personally, I think very little of the “rational basis” test... it invariably just means that the court disagrees with the Congressional rationale, not that there is in fact no reason for making the distinction.
I’m a big fan of the Institute for Justice. Dick Komer was a huge help when I worked in our state’s governor’s office and was working on a school choice program. But at first glance here, I’m concerned that they may be promoting a judicial weapon which could easily backfire.
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November 1, 2009, 9:14 pmHoward Bowman, MD says:
Eggs are not renewable....not that it matters much, there are far more than needed...
However, why is it that everyone involved in organ transplant (the recepient, the physicians, the other staff, the hospital, the labs, the pharmaceutical companies, everyone) BUT the donor benefits materially?
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November 1, 2009, 9:18 pmCGordon says:
Why in the Ninth Circuit?
Best of luck!!!
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November 1, 2009, 9:48 pmShelbyC says:
It treats people who need bone marrow transplants differently than it treats people who need, say, blood transfusions.
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November 1, 2009, 9:58 pmSumBudy says:
I’m writing this as a one-time anonymous bone marrow donor. On a purely ethical (rather than legal) basis, I have serious concerns about paying bone marrow donors for their donation.
Bone marrow donation for Leukemia-like diseases is not like simple blood donation. A donor’s marrow has to match certain markers with the patient. If a close family member is not a match, then finding this person is like finding a needle in a haystack. One of the ways a match is found is through people who volunteered to have their some of their “markers” placed in a national database. If you match on the initial markers, you’re then tested to determine if you’re an appropriate match.
Again, this is like finding a needle in a haystack. Sometimes you find a person who is a potential match (and thus a potential donor). Many times you don’t and the patient dies.
If a match is found — and frequently only a SINGLE person who is a match will be found — the match is given a choice — go through with it or don’t. Nobody is forced to be an anonymous donor. Essentially, people who are afraid of the procedure will drop out, and that’s their wish and their right. People who are willing to give the chance of life to a complete stranger will stay in and have the procedure. Potential donors like myself are given full and honest information about the procedure’s risks and can back out at any time (although doing this within the last few days before the procedure will likely kill the patient because they will have had their immune system destroyed immediately prior to the procedure).
I’m very troubled by the idea of allowing people to “sell” their marrow. On an ethical level, I don’t like the idea that a potential donor gets to play “God” with another human being’s life. Keeping in mind that donors are frequently unique, how would the price negotiation and the market for this work? Would unscrupulous donors ask for the patient’s life savings? What’s the value of the patient’s life? What would happen as other donors realize that they’re losing out — would EVERY donor now want to get paid rather than doing it because it’s the right thing to do?
Right now, the system is anonymous and nonconfrontational — if you want to be in the registry, that’s your choice. If you’re asked for 2nd level testing, it’s your choice. If you want to go through with the procedure, that’s your choice. The folks I dealt with made it abundantly clear that there was absolutely no benefit to me other than doing something good for another person. I think it should stay that way.
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November 1, 2009, 10:44 pmasg says:
If a match is found — and frequently only a SINGLE person who is a match will be found
Why do you think this is?
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November 1, 2009, 11:54 pmPatHMV says:
SumBudy... Thanks for the insight. I regularly argue with our host against his position in favor of allowing the sale of kidneys and other organs, both to the families of deceased donors and to living donors.
What are the risks of bone marrow donation? I understand it’s a fairly painful procedure, because a needle has to go through your bone, but what potential complications are there?
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November 1, 2009, 11:54 pmreadery says:
I’ll repeat my last comment from the last thread: Imagine the anti-market analogue of these plaintiffs filing a lawsuit claiming that using markets to set prices is unconstitutionally irrational and the Due Process clause requires that rational, judge-set prices should be used instead.
Enterprising plaintiffs could find plenty of low-hanging fruit. For example, within the space of a few months, the price of oil went from about $147 to about $30. Plaintiffs could easily argue that in this limited time there was no fundamental change in either long-term supply or long-term demand,and hence the differential’s basis is not economically rational. Accordingly, plaintiffs would argue the federal judges should strike down irrational market-set prices and substitute rational judge-set ones.
Are markets constitutionally rational? An effort to defend markets as a constitutionally permissable basis for government action would have to begin by acknowledging that it’s easy for markets to get into situations an outside, non-pro-market obsever might find puzzling, but that these situations should not be taken in isolation but put in the context of a broader perspective of market behavior. Markets determine an stable rational price despite ongoing change in part by interactive agents experimenting with changes in price when the economic context appears to be changing; and it is necessary to the experimental process to scope out a broad range of territory., broader than a plaintiff or a judge might individually prefer.
But if market advocates are entitled to provide context to explain how markets operate — if market opponents can’t simply take two points on the graph, claim that there’s obviously no rational basis for the discrepancy between them, and demand that markets be struck down — then advocates of the democratic process are similarly entitled to provide context to explain how that process may similarly result in outcomes that may appear puzzling to an outsider.
In this context, Congress had two ideological positions before it, one advocating a complete use of markets for all decisions, and once completely opposing any market-based approach. There are obvious reasons for the anti-market position — libertarians may disagree with paternalism, but since Lockhart it has been considered beyond debate.
In this case Congress clearly compromised between paternalistic and non-paternalistic approaches by drawing a line. The plaintiffs in this case argue that judges should micro-manage the line by insisting that there be one and only one rational place where it can be drawn. But the line here is no different from a speed limit, where any limit can always be justified as a compromise between convenience and safety. Judges may prefer to draw the line further one way or the other, but theat doesn’t make a different compromise irrational.
So here. Congress could have simply drawn straws or picked body parts out of a hat to be either market-based or non-market based, and the result would still be rational in the speed-limit sense as a line drawn between two positions. It has no constitutional obligation to base its line on any particular articulated organizing principle, or to adhere to any principle articulated by its members perfectly. That is, “compromise between paternalism and libertarianism” is itself a constitutionally adequate organizing principle justifying dividing human tissue donations into two categories, one to be addressed paternalisticall and one to have a market basis, and the constitution requires no further reason why to draw the line in a particular way, just as “compromise between convenience and safety” justifies setting a speed limit at wherever a legislature wants and the state need not further explain why members of one own might choose a speed limit of 30 and members of a very similar-looking town might choose 50.
And if an explanation were required it would be clear enough: bone marrow has characterisics somewhat between body organs and fluids. The plainiffs emphasize its similarity to marketable tissues, but there are certainly similarities to non-marketable ones. When drawing a line, it’s always possible to find situations that are classified on one side but arguably ought to be on the other side, as Justice Holmes explained, this situation simply doesn’t invalidate the line. The fact that one person might call a moment in evening day and another night simply doesn’t invalidate the rationality of the concepts of day and night nor a particular test for choosing between them: disagreement about boundaries is inherit in any effort at classification and categorization.
It strikes me that this lawsuit , seen as an attempt to strike down a classification system as irrational because of disageement about one boundary is as obviously meritless as legions of similar lawsuit.
The plaintiffs obviously don’ want things seen this way — they simply want to talk about two items which seem similar but which the law for reasons they can’t fathom are treated differently. But the law shouldn’t reward naivete or looking at things with blinkers. If it did, no only are there plenty of similar-looking streets with different speed limits, there are plenty of situtions where markets result in different prices for things that look to an outsider to be similar. If this law is unconstitutional, then an anti-libertarian judge could find market-based prices unconstitutional.
My general advice to libertarians is to use the democratic process rather than the courts to effect change: something imposed on people from the outside simply isn’t liberty in he same way as something they decide themseleves. People who are zealously convinced of their rightness often feel strongly that those who disagree with them are not only wrong but irrational, but this strong sense of certainty can be misleading, and a skeptical view realizes that many strongly-held beliefs turn out to mistaken, someimes after years or centuries. In my view, the sort of question this case represents is clearly one judges should leave to legilatures. To tempt judges into taking it is, in my view, mistaken.
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November 2, 2009, 12:01 amTNeloms says:
I’m also on the registry and I think that I would donate if a match came through. I understanding that you think it should stay donation-only, but what if it were the case that paying people drastically increased the donor pool? Would you support it if it doubled the amount of bone marrow transplants? I think the argument should be more about which policy will be most effective rather than which policy is “right.”
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November 2, 2009, 12:11 amSumBudy says:
There’s more than one method for the donation. I’m aware of two: (1) A surgeon inserts a needle into your thigh and removes marrow. (You’re usually under local or general anesthesia for this.) (2) You receive injections to increase the amount of marrow in your blood for five days, and then sit with your veins tied into a centrifuge for 4–5 hours while the marrow is removed.
I experienced method #1. I know other people who experienced method #2. The general perception is that method #1 is less painful even though it involves actual surgery. I was mildly sore for about a week, but was back to work within 2–3 days. Method #2 does not involve surgery but results in bone pain for a few days and the actual procedure to remove the marrow is uncomfortable for 4–5 hours.
The group that handled my donation was remarkably upfront about the risks. They had me read an essay about a woman who almost died from an infection that probably resulted from the surgery. However, this was an incredibly rare case — the vast, vast majority of people have no or few complications.
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November 2, 2009, 12:14 amSumBudy says:
Just to be clear, I’m arguing this as an ethical issue and not as a legal issue.
You’re asking two different questions — one about the “donor pool” and one about transplants. If the end result of paying every donor $100 was to triple the number of donations — keeping in mind that a “donation” requires a patient and a matching donor — then I might support that. Keep in mind that $100 is a tiny pittance in comparison to what the whole procedure likely costs.
Your other option — that MIGHT work — would be to ask people in ADVANCE OF TESTING what they would accept as payment if they were discovered to be a match. This would work better because then there’s no way for a potential donor to knowingly tell a person “pay me and you live, don’t pay me and you die.” In other words, the market would be generally for donors and patients rather than for the one donor who could save a particular patient’s life.
Of course, the problem with advance negotiation is that it’s also probably unethical to create a contract like this in advance — could you really imagine asking for specific performance of such a contract if the donor then decided to back out at the last minute? And, such a contract would require a full and lengthy disclosure of the risks that would make the entire process more expensive for everybody — currently, the process is a blood test or a mouth swab that takes minutes.
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November 2, 2009, 12:23 amJeff Walden says:
I’m no fan of prohibitions on compensation schemes for organ donation, but I also tend to think, at a brief glance, that the lawsuit is overwrought. I’m generally skeptical of substantive due process violation claims; as for equal protection...maybe, but arguing a constitutional differentiation between renewable and nonrenewable organs seems a stretch. Illogical, yes, but not unconstitutional.
I’m curious, Off Kilter, why you think bone marrow isn’t covered given that 42 U.S.C. § 274(e)(c)(1) clearly enumerates bone marrow under its definition of “human organ”.
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November 2, 2009, 12:40 amyankee says:
Wow, I must have an incomplete copy of the Constitution; it’s missing the bit where it says no class of cells shall be denied the equal protection of the laws.
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November 2, 2009, 1:56 amloki13 says:
I’m just going to add a concern that’s already been raised, supra. I don’t want to concern troll here, but.... *what are you thinking*? Conservatives/libertarians want to put teeth into rational basis review?
Rly?
Let’s just think about this for one second.
1. Build up a body of caselaw that allows judges to strike down legislation that they find “irrational”.
2. ?
3. Profit!
Okay, I’m making with the funny here. But c’mon, aren’t libertarians the ones that are always talking about unintended consequences (or Ayn Rand in a bikini.... but I digress). Do you really think that the “black robed activist judiciary” is going to just invalidate the laws that you dislike on rational basis review? I mean, heck, you just saved them durned librul livin’ Constitutionalists all that energy pontificatin’ and thinkin’ and sneakin’ in all sorts of unenumerated rights in through substantive due process– now, they just have to squint hard and say that only a CRAZY PERSON (read: republican) would ever come with such a law.
I have to wonder... if they win this case, will the IJ lawyers start laughing maniacally while beholding what they have created while screaming, “It’s ALIVE! ALIVE! Rational basis review is alive with TEETH (and is green, with two bolts in the side of his head)!”
Goes to figure we’d get this guest blogger after Halloween weekend. Anyway, I look forward to his contributions, and hope that 1) y’all treat him more kindly than you did the poor alternative punishment guy and 2) he explains why he thinks the government should get rid of the “gun show” loophole.
HA!
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November 2, 2009, 2:35 amDavid Newton says:
Then you really have not read the constitution have you? Of course it will not specifically refer to things like bone marrow cells. The equal protection portion of the constitution can be found in the 14th amendment. I suggest you read that several times before making fatuous comments again.
It is entirely possible that the 14th amendment does not extend to this case, but part of what it was passed to cover was to stop arbitrary differentiations of treatment under the law. The citation about eggs further up the thread shows up a further inconsistency which could potentially be used as a weapon by those fighting the case. There are good policy reasons to stop payments for donations of organs like hearts etc. Those policy arguments are indeed much less strong when talking about replenishable substances like blood and indeed bone marrow. The crux of the argument appears to be that bone marrow is a replenishable substance like blood but is treated like a finite organ under the law for no good reason. That is a situation that—to me—looks like unequal treatment under the law for no valid reason and thus squarely in the sites of the equal protection clause in the 14th amendment.
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November 2, 2009, 3:03 amloki13 says:
You completely miss the point of the equal protection clause.
1. As originally conceived (original expected application / original intent), there would be no question that this sort of law would not fall within the purview of the EPC. To paraphrase Charlton Heston, “The EPC is people... IT’S PEOPLE!” It was designed with the primary intent of allowing the newly freed black slaves to enjoy the equal protection of the laws; it has been expanded to afford protection to other “suspect classes” (see Carolene Products, n.4). Heck, even women are covered now, contra to original expected application (although not textualism). But there’s no real originalist argument here.
2. As a question of stare decisis, it would fail as well. Traditionally, courts have upheld everything under the EPC under rational basis. While most people think of rational basis review as a monolith, and the standards of SDP and EPC review are similar (is there an asserted rational reason OR can the court conceive of a rational reason), there have been two cases where SCOTUS has struck down, on EPC grounds, using rational basis– Romer and Cleburne (aka teh gayz and the handicapped). What we can discern from that is that sheer animus for an unprotected group *of people* is not enough to pass rational basis (with teeth). (Romer had some other interesting twists, but ’nuff said)
3. From a mere policy perspective, you’d have to view it in this way– the government has to draw lines/distictions (think of age; like, when to get a driver’s license, or wealth– for means testing, or, heck, just about anything). It’s permissible for the government to draw distinctions, even if *they aren’t the best ones, or even good ones*. That’s why we vote. So long as *people* aren’t being singled for disparate treatment because of their (all together) hisotry of political powerlessness, immutable characteristic, history of discrimination yada yada yada, the courts will let the democratic process handle it.
What should the IJ do? Let We, The People, vote for legislators that do less stupid things. That’s how the system works. And I suggest you do some reading “before making fatuous comments again.” Sheesh. Feeling high and mighty today, aren’t we?
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November 2, 2009, 3:19 amp.d. says:
Having attended a few speeches/debates by IJ attorneys before, the case seems to fit the bill despite probably having such a long shot of success. They want to raise the level of review of legislation (state or federal) that restricts economic liberty above simple rational basis scrutiny to something that actually considers the merits and demerits of these laws.
This seems like nice test case to throw before federal courts (especially the 9th Cir.) to push this aim. Coming from an economic perspective, I think it’s interesting that Carolene Products (n.4) completely predates almost every advance in public choice theory, from which we now realize there will result plenty of terrible laws that restrict basic economic liberty (think interior design cartels, etc). Good for IJ. If it’s a loss, hopefully it will be a loss that prompts legislative change.
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November 2, 2009, 9:30 amPatHMV says:
p.d.... if you are correct about the I.J.‘s long-term goals, then I will be very, very concerned about them. It’s NOT the role of the courts to consider the “merits and demerits” of the laws passed by Congress and the state legislatures. It’s the role of the courts to interpret and apply those laws, and to strike them down only when they violate the Constitution. And the Constitution does not provide for a “judge’s veto” over laws the judge thinks unwise.
Even if the goal is merely to garner attention to an issue in order to help foster legislative change, that’s a really poor use of the courts and would provide aid and comfort to those who would use the courts to interfere with our political liberties.
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November 2, 2009, 9:53 amCGordon says:
Personal freedoms are surely within the province of the courts. Majority rule does not preserve individual rights very well. The right to medical self defense deserves judicial protection just as much as other rights regularly enforced by the courts, such as search and seizure, and other individual rights that can be abused by the democratic process.
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November 2, 2009, 11:18 amp.d. says:
PatHMV, I probably stated it too broadly, though my understanding is that they consider the Privileges or Immunities Clause as intended to protect economic liberty and a basis for ramping up review, however slight, of laws that protect cartels with no public safety justification, etc. I guess that’s the constitutional hook, not simply a higher standard of review for its own sake.
I share your concerns about courts gone unhinged, though. If the cases IJ takes are representative of the sort of laws that might be struck down, I don’t think we can fault them too much, though once the Court endorses a higher standard of review or gives “rational basis” review anything more than rubber stamp approval, there’s obviously the concern that you’ll throw out the baby with the bathwater, and so on.
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November 2, 2009, 1:44 pmbyomtov says:
Just as a matter of information:
From the website of the National Marrow Donor Program:
Bone marrow donation is a surgical procedure. While you receive anesthesia, doctors use special, hollow needles to withdraw liquid marrow from the back of your pelvic bones. Many donors receive a transfusion of their own previously donated blood.
You can expect to feel some soreness in your lower back for a few days or longer. Most donors are back to their normal routine in a few days. Your marrow is completely replaced within four to six weeks.
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November 2, 2009, 2:12 pmp.d. says:
From that page you linked, I think this is what Jeff Rowes et al were referring to, which is similar to gathering plasma (still gathers the marrow cells patients need):
5. PBSC Donation
PBSC donation takes place at an apheresis center. For 5 days leading up to donation, you will receive daily injections of a drug called filgrastim to move more blood-forming cells out of the marrow and into the bloodstream. Your blood is then removed through a needle in one arm and passed through a machine that separates out the blood-forming cells. The remaining blood is returned to you through the other arm. This process is similar to donating plasma.
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November 2, 2009, 2:16 pm