Thanks Eugene for letting me guest-blog this week about the Institute for Justice’s latest case: the first ever constitutional challenge to the National Organ Transplant Act (NOTA). 
We’re asking the courts to enjoin the Attorney General from enforcing the provision of NOTA that makes it a serious crime to compensate bone marrow donors.
I’ll use today’s post to sketch our constitutional theory. Then, in the following days, discuss the history of NOTA, the standard of review called the “rational basis test,” the proper role of judges, and by Friday I’ll wrap things up with responses to comments.
Bone marrow transplantation is a lifesaving treatment for 70 deadly blood diseases, including cancers such as leukemia and lymphoma. Most people who need a transplant need one from a stranger, and tens of thousands have died because they lacked donors. Our clients want to increase the number of unrelated donors by having a charity offer them a $3,000 scholarship, a housing allowance, or gift to the donor’s favorite charity. Unfortunately, using scholarships to save lives is considered organ-selling under NOTA, a major federal crime.
We know what Congress intended when it enacted NOTA. 1,500 pages of detailed legislative history make it clear that Congress wanted to outlaw markets in kidneys and other solid organs. Congress didn’t like that organ surgery is invasive, that donated organs don’t grow back, and that organs would flow from poor to rich on an open market (I’ll discuss tomorrow why the relief we seek won’t give rise to markets).
Congress didn’t intend to criminalize compensation for renewable cells such as blood or sperm. In fact, the Conference Report the House and Senate jointly sent to President Reagan with the bill he signed said so.
Congress included bone marrow in the statute by mistake. A “bone marrow” transplant involves the collection of immature blood cells, not the removal of an organ or tissues. Most marrow cells are now collected using the same equipment and methods for blood donation. Donating marrow cells is safe and they quickly replenish themselves just like donated blood. Bone marrow wasn’t discussed in the legislative hearings and was inserted in the statute at the end of the drafting process, probably by a staffer (more on this tomorrow).
Here’s an analogy. Congress doesn’t like big pets attacking people. After 18 months of hearings, Congress outlaws selling pets over five pounds, and defines “pets” as “dogs, cats,” and, inexplicably, “pet rocks,” even though “pet rocks” were never mentioned during the hearings, are not actually household pets, and banning their sale doesn’t advance any interest Congress was trying to address by banning the sale of dogs and cats.
The inclusion of bone marrow in NOTA, like the inclusion of pet rocks in the hypothetical law, is not the result of Congress “making a hard call” or “drawing the line somewhere.” It was just sheer error, one that has undoubtedly cost tens of thousands of lives.
Of course, not every legislative mistake is unconstitutional. But a legislative mistake so profound as to render a statutory provision irrational is unconstitutional when it affects liberty. The Supreme Court has invalidated irrational statutes under the rational basis test at least a dozen times and there are literally hundreds of state and federal cases doing the same thing.
Here’s our constitutional theory in a nutshell. The provable absence of a rational basis for the bone marrow provision of NOTA means that the statute violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.
Next, throwing people in prison for compensating marrow-cell donors, but not throwing people in prison for compensating blood or sperm donors, violates equal protection because there is no non-arbitrary distinction between these acts. In all cases, the donor is being compensated for safely donating renewable cells. The flip side is also true. Just as it is arbitrary to treat similar things differently, it is also arbitrary to treat solid organs such as kidneys like bone marrow.
Let me quickly address two objections and let readers know that I’ll explore them in more detail this week. First, you might say, “who cares what Congress intended, judges get to make up justifications for laws under the rational basis test.” While it’s true that judges do make up hypothetical rational bases for laws in some cases, that approach only makes sense—to the extent it ever does—when no one knows why a law was enacted.
But we know why NOTA was passed. Why would we ever want a theory of constitutional interpretation that says in effect, “judges should make up reasons for the government to take away your liberty even when the legislature didn’t intend to do so”?
The second objection runs something like this, “if Congress made a mistake, then it’s up to Congress to fix it, not a judge.” But the legislature could fix every unconstitutional law. This isn’t an objection to the bone marrow case. It’s an objection to judicial review. I’ll have more to say later about what we at the Institute for Justice think is wrong with reflexive judicial minimalism.
Thanks again Eugene and I really look forward to discussing this exciting case with everyone.
Jeff Rowes on IJ’s Suit Challenging Ban on Compensation for Bone Marrow Transplats « Josh Blackman's Blog says:
[...] for Bone Marrow Transplats November 2, 2009 — Josh Blackman At Volokh, Jeff Rowes provides a sketch of IJ’s new suit challenging NOTA and bone marrow transplants. Read the entire post, but here [...]
Josh Blackman says:
Jeff, best of luck. Let’s hope you get a Craigmiles-style rational basis opinion, and not a traditional Lee Optical rational basis opinion. http://wp.me/pEwAT-ny
Quote
November 2, 2009, 10:22 amyankee says:
Maybe your approach to rational basis review makes sense, but is it the law? No cites handy but my recollection is ‘no.’
Quote
November 2, 2009, 10:32 amChrisIowa says:
Why not seek a legislative correction rather than a Judicial decision?
Quote
November 2, 2009, 10:38 amJeff Rowes says:
Yankee, I will be including case citations in my discussion of the rational basis test on Wednesday. I didn’t want this intro to be too overwhelming.
ChrisIowa, we’re not against a legislative solution and we’re happy to work with Congress to amend the law. But, as I mention in the blog post, the possibility of a legislative solution doesn’t alter the fact that people have rights and that courts are supposed to enforce them.
Quote
November 2, 2009, 10:47 amParatrooperJJ says:
As a transplant receipient, I say good luck!!
Quote
November 2, 2009, 10:50 amAultimer says:
Has anyone ever been prosecuted under NOTA? How about for compensating marrow donors?
Quote
November 2, 2009, 11:01 amShelbyC says:
“...and that organs would flow from poor to rich on an open market (I’ll discuss tomorrow why the relief we seek won’t give rise to markets).”
But why is that bad? Rich folks that need organs have a surplus of money and a shortage of organs. Poor folks with healthy organs have a surplus of organs and a shortage of money. So organs flow from healthy to sick, and money flows from rich to poor. Just another example of how freedom makes everyone better off.
The fact that the relief sought won’t lead to markets sounds more like a bug than a feature.
Quote
November 2, 2009, 11:04 amDjDiverDan says:
While I certainly laud your ultimate goal, I think this is just another in the very long (and very broad) line of cases where Congress acted stupidly. I really fear a precedent that says the Court can overturn a statute because 5 members of the Court agree that it is “irrational”. By that measure, a vast majority of Federal statutes are vulnerable to judicial intervention. Even adding the argument that the inclusion of bone marrow in NOTA’s prohibition was a “mistake” because it was added at the end by a staffer without any mention in the hearings is not a distinction I would recognize as meaningful — wasn’t there a vote in both houses on the Conference Report after bone marrow was added? It seems that we ought to presume that Congress knew what it was voting for — though that presumption may be unwarranted, it has the salutory effect of forcing politicians to accept responsibility, and maybe, just maybe, making Voters pay attention to what their careless representatives are up to. In any event, I view any Constitutional challenge based solely on the claim that the law was “a mistake”, or “irrational”, or even just plain stupid (God knows there are more than enough stupid laws to keep Courts swamped for years!), as inviting a very dangerous precedent.
I can see several other Constitutional challenges to NOTA itself and the inclusion of bone marrow with which I would be more comfortable. First, the whole notion of Congress interfering in the intrastate purchase or sale of organs seems beyond any rational view of it’s authority under the Commerce Clause — but that’s a fight that the Court gave up on long ago; the Commerce Clause is now a blank check to Congress to do whatever it wants to (with very few exceptions). Second, I like the notion that voluntary transactions in otherwise legal activity (it’s certainly legal for me to voluntarily donate bone marrow, and for another to accept the donation) implicate a liberty interest that is beyond Congress’s power to regulate under the 9th Amendment. Unfortunately, the Court has effectively made the 9th Amendment a Constitutional dead letter. Finally, it certainly seems that if some amorphous “right to privacy” in medical decisions can insulate abortions from regulation, it ought to at least insulate voluntary transactions in other medical treatments, unless the Court is willing to admit that its “right to medical privacy” is limited to women only, and ends at the boundary of a fertile woman’s uterus.
Quote
November 2, 2009, 11:17 amtb says:
The Irish also have a surplus of infants. mmm... infants.
Quote
November 2, 2009, 11:23 amA Conceited Jerk says:
If Congress’s inclusion of bone marrow in NOTA was truly an error and did not represent any kind of conscious decision, couldn’t NOTA be interpreted not to criminalize compensation for bone marrow transplants (i.e., as a “scrivenor’s error”)? Compare, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989). In Bock, even Justice Scalia apparently conceded that judges could/should depart from the text when it appears that the text was included (or excluded) purely in error and did not represent any kind of legislative decision.
It seems to me that attacking the problem via statutory interpretation is a more modest approach than attacking it by constitutional challenge.
Quote
November 2, 2009, 11:24 amMalvolio says:
As someone already wrote about another aspect of this suit, that’s not a bug, it’s a feature.
Seriously, if you can convince five people out of nine — and not just any nine, The Nine — that a law is not just suboptimal but actually irrational, isn’t that enough reason the government ought not be able to use that law to persecute citizens?
Quote
November 2, 2009, 11:30 amShelbyC says:
:-)
Eating infants doesn’t make everyone better off, tho.
Quote
November 2, 2009, 11:33 amSteve says:
While it’s true that judges do make up hypothetical rational bases for laws in some cases, that approach only makes sense—to the extent it ever does—when no one knows why a law was enacted.
So if Congress provides no reason, the courts will make up reasons to uphold the statute as written, if they can come up with some. But if Congress does provide a reason, the courts will rewrite the statute so that any provisions which don’t advance the stated reason are eliminated.
This seems to create a system of highly perverse incentives for the legislature. Not to mention the standard criticisms associated with employing the concept of legislative intent in the first place.
If there exists a hypothetical reason that would sustain the statute on a rational basis theory, it seems unwarranted to say “well, Congress noted other reasons but didn’t write this one down anywhere, so it couldn’t possibly be one of their reasons.” You’re essentially creating a constitutional requirement that Congress show its work.
Quote
November 2, 2009, 11:36 amDavid Schwartz says:
Steve: You assume that the legislature has some kind of interest in maintain bits of law that it passes in error. Isn’t it just as likely that the legislature recognizes that it does make errors and sees genuine error correction as helpful? Isn’t it just as likely that Congress will detail its reasons so that courts will interpret them to have the effects Congress actually wanted, even if the Legislature screws up?
Quote
November 2, 2009, 11:58 amyankee says:
Sure, but IJ’s goal in this litigation is to set precedent expanding the scope of rational basis review. Allowing people to sell their bone marrow is secondary.
Quote
November 2, 2009, 12:05 pmfwb says:
Gosh, how many grants of authority to make things criminal (power to punish) at the federal level can you find in the Constitution?
Hint: There are less than 10.
Tiocfaidh ar la!
PS: and don’t blow smoke in the air citing “necessary and proper” cause that dog don’t hunt!
Quote
November 2, 2009, 12:07 pmkrs says:
I’m looking forward to future posts. My initial thought is that the challenge is DOA. The law IJ is challenging is bad policy, for the reasons in the post, but the arguments for having a court overturn it seem wrongheaded and typical of movements who go to the courts when their policy agenda fails in the legislature. I’m open to being convinced, though, and interested to hear the arguments against judicial minimalism.
For people as unfamiliar with bone marrow transplants as I am, does anyone know: (1) what is involved in extracting bone marrow? Do they crack your bones and scoop it out, or is it like donating blood, but they drive the needle deeper? How long does it take to recover from the wounds of a bone marrow extraction? (2) how quickly does the body of an average healthy person replace a typical donation-size quantity of bone marrow? I suspect it’s not an absurdly long time, but that it’s significantly slower than for blood.
Quote
November 2, 2009, 12:12 pmPragmaticist says:
What about “medical self-defense” of one’s life as a legal basis for challenging the law?
Quote
November 2, 2009, 12:15 pmSteve says:
Steve: You assume that the legislature has some kind of interest in maintain bits of law that it passes in error.
I don’t agree with the definition of “error” which assumes that the statute has a clear, unitary purpose, and anything which doesn’t advance that purpose must have been included in “error.” To me an error is when the statute says “or” instead of “and,” or omits a “not” that alters the intended meaning of a sentence.
If there’s a hypothetical rational basis on which this provision could be sustained, it doesn’t seem like it should be struck down just because we have no evidence that the theoretical entity known as “Congress” had that rational basis in mind. Maybe the legislator who put the provision into the final bill was thinking of that rational basis, maybe not, we have no way of knowing. But the Constitution doesn’t mandate some process where the legislator must put his reasons into the record and the rest of Congress says “oh, okay, we agree with those reasons.” Passing the bill is the most significant manifestation of intent.
Quote
November 2, 2009, 12:19 pmDavid Chesler says:
Second what Shelby said.
My organs, liquid and solid are for sale, now and after death. If someone dies because I’m buried with my organs, blame NOTA.
There most certainly is a difference between donating these various bodily fluids. Donating the legal kind is either relatively painless or pleasurable; donating bone marrow is painful and debilitating for days or weeks. In my opinion that’s all the more reason it ought to be compensatable. In fact, if my antigens ever match I’m going to have to tell them they’re welcome to my marrow, but my children can’t do without my salary or my domestic efforts, so before they convince me to donate my time and pain they’ll have to convince my employer to voluntarily continue giving my salary to me while I’m recovering. (I don’t get paid sick time.) A $3,000 donation to the charity of my choice won’t cut it. I don’t know if giving me special compensated sick time would violate the law.
Quote
November 2, 2009, 12:27 pmShelbyC says:
Assuming they read it :-)
Quote
November 2, 2009, 12:31 pmSteve says:
donating bone marrow is painful and debilitating for days or weeks. In my opinion that’s all the more reason it ought to be compensatable.
This is a perfectly reasonable policy argument. On the other hand, it’s also an argument for why donating bone marrow is more like donating an organ than it’s like the relatively cheap and painless act of giving blood.
The problem with IJ’s incredibly broad notion of equal protection is that once we decide we’re not limited to distinguishing among people based upon the easy-to-understand classes like race, gender, religion, etc., there are an infinite number of possible distinctions that the Equal Protection Clause could theoretically be held to recognize. The IJ says the relevant distinction is between renewable bodily substances and non-renewable ones. Well maybe the distinction should be between risky procedures and non-risky ones, or between invasive procedures and non-invasive ones, or who knows what. The rational basis argument is all well and good, but calling it equal protection still strikes me as loony.
Quote
November 2, 2009, 12:35 pmMonday Links « Unkategorized says:
[...] Monday Links Jump to Comments IJ’s wildly exciting new case, protecting cancer patients from arbitrarily life-threatening le.... [...]
Steve says:
Assuming they read it :-)
We don’t assume they read it, of course, just like we don’t assume that everyone reads their credit-card contracts. But contract law would be a lot murkier if you could get out of a contract simply because you didn’t read it. Similarly, the constitutionality of statutes should not come down to a factfinding exercise as to whether the legislators who passed the bill actually read it or understood the intent of each provision. Maybe we’d be a better nation if it worked that way, but there is no “show your work” requirement imposed on Congress in the constitution.
Quote
November 2, 2009, 12:40 pmIJ Protects Individuals from Arbitrary, Life-threatening Legislation « Unkategorized says:
[...] Jeff Rowes introducing IJ’s new case: Here’s an analogy. Congress doesn’t like big pets attacking people. After 18 months of hearings, Congress outlaws selling pets over five pounds, and defines “pets” as “dogs, cats,” and, inexplicably, “pet rocks,” even though “pet rocks” were never mentioned during the hearings, are not actually household pets, and banning their sale doesn’t advance any interest Congress was trying to address by banning the sale of dogs and cats. [...]
Kenvee says:
I am highly uncomfortable with rewriting the extremely plain language of a statute to fit what we think Congress “meant” to say. If they really meant to say it that way, then they can tell us so by amending the statute. We have written laws so that, at least theoretically, an average person can determine what is and is not permitted by looking at the law instead of having to depend on the whims of the king (or judge) that day. If the judge can say “X really means Y”, then what value is there in having a written law?
I think Ledbetter was a good example of how things should work in this context. The Supreme Court said “the law plainly says this and we can’t ignore that, no matter what we think of it.” Congress said “That’s not what we really meant” and amended the law to account for it. Congress should be encouraged to write laws that actually say what they mean, not let the courts sort it out however they want later.
Quote
November 2, 2009, 12:52 pmDr. Mark says:
I am a hematologist/oncologist. Currently there are 13,782,468 volunteer donors in international stem cell donor registries. The vast majority do tend to be Europeans. My last patient who needed a donor was of German ancestry, and we found 32 matches.
Quote
November 2, 2009, 1:31 pmInstapundit » Blog Archive » THE INSTITUTE FOR JUSTICE’S BONE-MARROW CASE: An introduction…. says:
[...] THE INSTITUTE FOR JUSTICE’S BONE-MARROW CASE: An introduction. [...]
DerHahn says:
krs .. look to the comments in the previous posts on this topic. At least a couple of marrow donors have posted about their experiences.
Rowes is playing fast and loose with statements like Most marrow cells are now collected using the same equipment and methods for blood donation.
It seems pretty clear from the comments that 1) invasive surgical marrow donation is not as rare as this makes it sound, and 2) that invasive marrow donation is sometimes the preffered method (and it’s chosen by the physcian attending the recepient, not the donor).
Quote
November 2, 2009, 1:37 pmOther Person says:
See here for one explanation.
Also, David Chesler: It is not necessarily painful and debilitating for weeks. Slight discomfort for days, perhaps, but not “painful and debilitating” except in rare cases and “weeks” in only exceptional cases.
Also, Dr. Mark says that there were 32 matches for one person. I’m unclear as to whether that was 32 matches at the initial stage or at the final match stage. In any event, from what I’ve heard, it’s relatively rare to have a huge number of matches.
Quote
November 2, 2009, 1:41 pmMalvolio says:
These sort of problems would just go away if we adopted my plan; to wit, applying strict scrutiny to every law. If a law doesn’t advance compelling governmental interest, if it isn’t narrowly tailored to achieve that interest, or isn’t the least restrictive means for achieving that interest, why should I go to jail for breaking that law?
Take an outlying example: the speed-limit. Clearly, traffic safety is a compelling government, but is a fixed upper limit the best way to achieve that? I don’t know but I’d sure like the Solicitor General, or whoever, be forced to prove it in court.
Quote
November 2, 2009, 1:49 pmInsignificant Dallasite says:
The suit seems to be based on the fact that most marrow collections are now done through apheresis. I don’t know if that’s actually true today, but it wasn’t in 1984 when NOTA was passed. Even if it is true today, that only means that facts have changed and tells us nothing about Congress intent when it wasn’t true. And I don’t think anyone who reads this blog would like to have a rule where the courts can change the law despite a clear congressional intent just because the court thinks the law is no longer a good idea.
The other form of marrow collection is surgical and involves all the potential risks and side-effects that go along with surgery and anesthesia. Even donation through apheresis carries greater risks than regular blood donation because it requires the donor to take medications to promote the overproduction of blood stem cells. This is just to say that it’s very plausible that in 1984 Congress felt marrow donation was more like organ donation than blood donation.
I say all of this as someone familiar with the process and the outcome and thinks that anyone who refuses to donate marrow on the basis of not getting paid (even if you have to take time off work) is a selfish oxygen waster who doesn’t even deserve his own marrow.
Quote
November 2, 2009, 2:00 pmSuperSkeptic says:
Seems Lochner-esque, without going the full monty, i.e., you try to draw that “non-arbitrary line.” If this provision “violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment[,]” then I do not see how all organ market sales do not open up under SDP — the statutory construction and judicial review issues notwithstanding.
I’m intrigued, but I largely second DjDiverDan’s comment.
Quote
November 2, 2009, 2:10 pmLior says:
Legal Questions:
1. Does Congress have the authority to ban the sale of bone marrow? It seems you think so, because otherwise you’d be making a very different constitutional argument.
2. If Congress has the authority to ban bone marrow sales, and has in fact passed a law banning them, in what sense can we say that congress did not intend to ban the sale of bone marrow?
3. Is the subjective intent of members of Congress relevant when there is no dispute about the meaning of the law Congress passed?
4. What extra-legal information is admissible in determining the subjective intent of Congress?
Practical question:
Does the filing the lawsuit indicate belief in your part that Congress will not amend the law? Doesn’t such a belief cut against the argument that Congress never intended the ban to apply in the first place?
Quote
November 2, 2009, 2:19 pmOther Person says:
Hi,
Although the quoted part of your comment doesn’t address the legal issues, I’d like to voice my agreement with this part. I can sort of understand why somebody might choose not to donate based on (lack of) pain tolerance, concerns about health or injury of the donor, or even just fear of needles (and if you’re a donor, get ready to be poked many many times). I can even sort of see providing some basic assistance to somebody whose family might suffer because the donor has taken a day or two away from work. But if an otherwise capable potential donor demands payment for providing the gift of life to another human being, that potential donor is an example of selfishness of the highest magnitude.
I’m not kidding when I say that most people can only dream of truly having the chance to save the life of another human being. Many donors I know saw it as an honor and privilege.
(Regarding the issue of people who can’t afford to take a day off from work — It’s possible to use sick days for this type of procedure. And I know of companies that will give a few days of paid leave without docking a person’s sick days. In any case, if a potential donor truly can’t get off from work without serious financial consequences, perhaps some financial assistance might be appropriate.)
Quote
November 2, 2009, 2:21 pmloki13 says:
First, I’d like to thank Jeff Rowes for posting here. It’s a tough job, but someone has to do it. Second, I will point out that I am fundamentally opposed to what he is trying to do; while I think his goal is laudable, I think the correct way to do it is through the legislature, not the courts. With that out of the way, my specific comments:
1. I think the rational basis analysis, as a general matter, is misguided. As others have pointed out, this is an attempt to use a sympathetic case (bone marrow) to advance the IJ’s goal of striking down economic regulation they view as “irrational.” However, in our form of government, the courts should not be used to strike down laws that people think are stupid, misguided, or wrong. Heck, Congress exists to pass stupid legislation! The remedy is for Congress to change the legislation, not to have courts strike it down depending on their whim. If the IJ thinks this will be cabined to economic regulations they find distasteful, then I have two words for them– Judge Reinhardt.
2. As for the particulars of their analysis, it is muddied and confusing (to me). They claim that the inclusion of bone marrow was just a mistake, yet this mistake is one that Congress passed in the final legislation and has not seen fit to correct since the Reagan administration (which would seem to put it past the mere scrivener’s error). But this mistake makes it unconstitutional. Why? Because it wasn’t what Congress intended? But how do we know what “Congress” intended? Through the bill that Congress passed! While hearings are informative, they cannot be dispositive.
3. As to the issue of judges being allowed to make up hypothetical reasons as to why a law was passed, I see some hand waving– it only makes sense if the judge doesn’t know why it was passed! Well, that’s not what the cases I am familiar with say. I hope you develop this theme further– it is contrary to most case law.
4. Finally, the throw-in of the EPC argument is something of a strain. While I can at least understand your liberty argument (although I think it is wrong), your EPC argument doesn’t follow anything I’m familiar with. Nada. Could you please point to a single SCOTUS case that uses EPC rational basis to strike down legislation that doesn’t deal with a group of people?
Again, I look forward to your posts. I believe you will lose this case. I am even more afraid that you will win, and I doubt that in the long run, you will be pleased with that victory.
Quote
November 2, 2009, 2:33 pmProfessor Chaos says:
@tb,
“The Irish also have a surplus of infants. mmm... infants.”
Not really. AFAIK they have the highest fertility rate in Western Europe, but it’s still well below the replacement rate — and well below the U.S. rate, for that matter. (Ireland is experiencing population growth, but it’s driven by immigration.)
Quote
November 2, 2009, 2:34 pmanon. says:
Since donors have an absolute right to refuse to go through with the donation, I don’t see how you can say that either method is “chosen” by the physician. The physician may prefer the traditional method over apheresis, and may urge the donor to comply with the physician’s preference, but no one can compel the donor to undergo a surgical bone-marrow extraction.
Quote
November 2, 2009, 2:38 pmGuest12345 says:
Insignificant Dallasite & Other Person:
I’m curious. Are you both volunteer firefighters? And in your spare time you are volunteer police officers. And when you aren’t doing that you volunteer for search and rescue. Plus you routinely and voluntarily dive into freezing rivers. Otherwise I fail to see how you can be anything except “a selfish oxygen waster(s)”.
Seriously, right now there are several things you could be doing that would be saving someone’s life. If you aren’t doing them would you characterize yourself as selfish?
Quote
November 2, 2009, 2:45 pmDavid Chesler says:
I stand somewhat corrected. My wife, for whom a bone marrow transplant was a forseeable possibility, forbade me from registering on that basis. She said she needed me healthy to take care of her. Glad to know if won’t be that bad. (Then again I’m still kind of achy from minor surgery 3.5 months ago that was supposed to go away in a couple of weeks, it was also a lot more painful than they told me. At my age I figure any pain is good because it takes my mind off some other pain.)
An argument could still be easily made that it’s different from a regular blood donation. I generally agree with the Institute for Justice, but I don’t find this argument convincing. Is it a violation of equal protection to charge people who buy Mercedes more for their cars than people who buy Hyundais? But if it works it works.
Insignificant Dallasite — why should the cost of the donation also land on the family of the unique donor? I agree there is something of a moral imperative to save a life. This patient will die unless this one particular donor undergoes the procedure. But why is it necessary for that unique donor to bear the costs?
In the other thread, SumBudy wrote 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. It seems to me that by refusing to go on the registry, one is playing G_d with that person who has no match instead of you. I understand most donors are never called at all, so it’s a slim chance, but it’s non-zero.
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. If you extrapolate that behavior, you’ll be spoken of well after you starve to death.
SumBudy continues: 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.” I guess some people can’t think in the abstract. Whatever price I write down when I register will exactly be used in that script “Find someone to pay me and you live, don’t find someone to pay me and you die.” (Just as the cost needn’t be borne by the donor, it needn’t be borne by the patient. It could even be a pool of people. But what type of human being wouldn’t pay a donor’s price if it could save someone’s life?)
Quote
November 2, 2009, 2:49 pmMike McDougal says:
Because they have politics to play, and this isn’t a big game.
Quote
November 2, 2009, 2:49 pmMike McDougal says:
I am growing weary of ridiculous fictions. Congress doesn’t know what it is passing, and people don’t know what the rules are.
Quote
November 2, 2009, 2:52 pmMike McDougal says:
Sounds good to me.
Quote
November 2, 2009, 2:53 pmDonald says:
As a believer that “rational basis” ought to mean “rational basis” rather than anything a government attorney can come up with to justify a bad law, I’m sympathetic to the argument.
But arguing that there’s no “non-arbitrary” distinction between bone marrow collection and blood or sperm collection seems a bit much. Isn’t it fair to say that bone marrow donation is a much more invasive procedure (involving a long, hollow needle inserted directly into bone) and requires longer recovery? (And I’m not sure, but isn’t it also much more painful–particularly more so than sperm donation?) Couldn’t Congress have intended to prevent poor people from undergoing the pain and hassle of bone marrow collection for monetary compensation, and found no similar need to protect people from blood/sperm donation?
Quote
November 2, 2009, 2:59 pmCarl The EconGuy says:
What’s the constitutional rationale for NOTA? The Commerce Clause, I presume? Which doesn’t make any sense because donors of bone marrow may receive compensation for the *act* of donating, specifically in the form of reimbursement for all costs of the medical procedure required to remove the bone marrow. So, I see a contract, delivery of a service (submission to a medical procedure), and remuneration. I also see marrow being sold at zero price, but that’s still a transaction. It’s pretty appalling that the Commerce Clause is so elastic that it can be used to allow a contract and a transaction to be completed but then require that the price for the actual item being extracted must be set at zero. It’s like saying that I’m allowed to dig up uranium on my property and get compensated for the extraction costs but not the uranium itself. There is no logic inherent in this at all.
Quote
November 2, 2009, 3:04 pmChrisTS says:
Guest:
Let’s see:
1) To refuse to give bone marrow except for $$ is selfish.
2) Therefore, to not do all one can do for other people at all times is selfish.
Nope. Sorry. Not gonna work.
Quote
November 2, 2009, 3:41 pmNobody Really says:
First a theoretical question: Let’s say the court decides that the extra pain of the traditional bone extraction of marrow is a reasonable distinction, but now we have a different, less painful and risky way. Does that mean a court can just arbitrarily wave away the law because the distinction is no longer relevant?
One possible basis for a rational distinction with bone marrow is that the pool of potential donors is very small (sometimes practically limited to one). That means that if allowed to charge, the donor could insist on exorbitant rates, creating a situation where only the rich (or those who can otherwise raise donations) can get a donation, or at least can get it without liquidating their assets and going into debt up to their eyeballs.
Quote
November 2, 2009, 3:43 pmShelbyC says:
The commentator was taking artistic license and speaking from a 1729 perspective. Google “modest proposal”
Quote
November 2, 2009, 4:12 pmBob from Ohio says:
This suit should have no chance of success because it is based on a lie.
Bone marrow donation is not like blood donation, is it?
Even the most charitable take on the donation procedure:
shows that it is different. Except for rare cases, people who donate blood recover completely within minutes.
Sperm donation is of course not really “painful” at all.
There certainly is a rational basis to treat bone marrow more like organs rather than blood. It can’t rally be disputed except by appeals to compassion, not law, as the video proves.
Quote
November 2, 2009, 4:26 pmNancy Reyes says:
Because of the lack of minority donors, signing up and having blood drawn for potential matches is common at American Indian celebrations.
But once you enter money into the calculations, you will have suspicion of the entire procedure. Why be paid for saving another person’s life? The suspicion will be that it is not about helping another minority, but a rich person who wants to exploit them. Your numbers will go down.
I suspect you will get the same problem in the Black community. So who will “benefit”? Rich white yuppies, who see profit and money are god.
Quote
November 2, 2009, 4:39 pmDavid Chesler says:
Kind of amazing that people who are incentivized by getting paid are richer than people who are disincentivized.
Quote
November 2, 2009, 4:44 pmmark m says:
i will 5 years where do i donate
Quote
November 2, 2009, 6:14 pmmark m says:
i meant i wil do 5 years if i can help these 3 girls
Quote
November 2, 2009, 6:15 pmRoger says:
I was going to say that about those who refuse to pay for marrow.
Quote
November 2, 2009, 6:25 pmloki13 says:
I think we have a nominee for eating Irish Children!
Quote
November 2, 2009, 7:32 pmRicardo says:
Not a lawyer, but as I recall, Federal courts do not recognize a medical necessity defense. Some states do but not the federal government.
Quote
November 2, 2009, 7:38 pmJeff Rowes says:
Quick note on some of the comments.
Donating bone marrow is safe but unpleasant. Most donations use the same methods for donating cellular components of the blood such as platelets. This procedure is non-surgical though inconvenient and you have to get a marrow-cell stimulating injection each day for five days leading up to donation, which takes several hours. About 30 percent of marrow-cell collections require pushing a needle through the hip bone to extract the marrow. That’s a surgical procedure and the injection site is painful and bruised. Most donors will not consent to this method, even though if often produces a better marrow-cell graft, because it is painful. Over 35,000 unrelated marrow donations have occured through the registry without a donor death.
Some people get quite a few potential matches on the registry, but the number of actually matching (after confirmatory testing), available, and willing donors is surprisingly small.
I’ll address the constitutional arguments in my forthcoming posts.
Quote
November 2, 2009, 7:45 pmJmaie says:
(Ireland is experiencing population growth, but it’s driven by immigration.)
mmmm....immigrant infants...
Quote
November 2, 2009, 9:17 pmSumBudy says:
Jeff,
I disagree with your description of the pain. I had marrow extracted from my hip bone. Aside from the usual discomfort of general surgery (including being poked and prodded for weeks beforehand), and some soreness for a few days afterwards, the overall procedure was not that unpleasant. I realize that people’s experiences may vary, but if mine was average than the pain is relatively minimal compared to other procedures. I would do it again if asked. For what it’s worth, I’m not somebody who can withstand large amounts of pain.
Quote
November 2, 2009, 9:20 pminsignificant dallasite says:
I don’t do any of those things, and I don’t fly LifeFlight choppers either. But there are people out there doing those things, and every single one of them is more qualified than I am. When you get the call to donate, it’s because there is no other more qualified and willing donor.
Quote
November 2, 2009, 9:41 pminsignificant dallasite says:
It isn’t necessary that the donor bear the cost other than the fact that that’s what the law says (to the extent it actually says that, I haven’t read it). But in my opinion, anyone who lets that law stop him from donating marrow is simply very unmensch. Such a person should also refuse to accept a donation unless he is able to pay the donor.
And for what it’s worth Congress has amended NOTA, as recently as last year. I don’t think the argument that Congress goofed and the court needs to fix it is going to fly very far.
Quote
November 2, 2009, 9:50 pmSumBudy says:
Apples and oranges. You’re comparing a state of doubt — where there’s a 0.00X% chance that you might be a match — to a state of knowledge in which somebody KNOWS that they’re a patient’s only chance. If you KNOW that you’re a match, then you could easily be a person’s only hope. You’ve got to be a really nasty sort of person to create that kind of hope in a patient only to smash it down by demanding a million dollars. (As I’ve said before — if a donor refuses to participate for other reasons, e.g. concern for the medical risks or the pain, I’m more forgiving.)
Perhaps I could have been a little clearer about what I meant. Additionally, you misunderstand how some of the initial registration process works. Essentially, the decision to accept or reject your offer is made well before the patient finds out that you’re an actual match.
I was placed in the registry about 15 years ago. At that time — and this may have changed — the family of the patient had to pay for each person initially tested. They were looking for people of a particular ethnic group because it was highly likely that a match would come from the same ethnic group. Since each test cost them ~$50, they specifically told me that they would not test anybody who was not from that ethnic group. It wasn’t racism, it was a cost/benefit analysis.
Now, imagine that you walk up to register and say that you’ll only donate if they pay you a million dollars should you be a match. You would have been not-so-politely asked to leave because it would have been a complete waste of time for them to pay fifty bucks to test you for that 0.00X% chance that you would save their son’s life. Even if you had asked for less, I strongly suspect that they would have refused to test you. Why? Because (1) enough people are willing to be tested for free that it makes you look like a greedy a**hole, and (2) I think they would strongly question whether or not somebody like you would actually go through with the donation.
(And if you did refuse to go through with it 10 years later, what would be their recourse? Somehow I think the judge would refuse specific performance on public policy grounds. Additionally, what if your medical situation changed so that it was slightly less safe for you to donate — who would decide if you could beg out of the contract? It’s beyond ridiculous to even try to untangle the legal issues.)
Similarly, even if you managed to get initial testing, I kind of suspect that many patients would refuse to give you second stage testing if your desire for payment was too high.
In other words, you would be rejected well BEFORE anybody found out if you were a high probability for a match. Neither you nor the patient would ever find out.
Quote
November 2, 2009, 9:56 pmSumBudy says:
Many, many people can be a firefighter. If a Leukemia patient is lucky, there is a single person who is a match for them.
Thus, your attempted comparison doesn’t work.
Quote
November 2, 2009, 10:00 pmSumBudy says:
Apples and oranges. You’re comparing a state of doubt — where there’s a 0.00X% chance that you might be a match — to a state of knowledge in which somebody KNOWS that they’re a patient’s only chance. If you KNOW that you’re a match, then you could easily be a person’s only hope. You’ve got to be a really nasty sort of person to create that kind of hope in a patient only to smash it down by demanding a million dollars. (As I’ve said before — if a donor refuses to participate for other reasons, e.g. concern for the medical risks or the pain, I’m more forgiving.)
Perhaps I could have been a little clearer about what I meant. Additionally, you misunderstand how some of the initial registration process works. Essentially, the decision to accept or reject your offer is made well before the patient finds out that you’re an actual match.
I was placed in the registry about 15 years ago. At that time — and this may have changed — the family of the patient had to pay for each person initially tested. They were looking for people of a particular ethnic group because it was highly likely that a match would come from the same ethnic group. Since each test cost them ~$50, they specifically told me that they would not test anybody who was not from that ethnic group. It wasn’t racism, it was a cost/benefit analysis.
Now, imagine that you walk up to register and say that you’ll only donate if they pay you a million dollars should you be a match. You would have been not-so-politely asked to leave because it would have been a complete waste of time for them to pay fifty bucks to test you for that 0.00X% chance that you would save their son’s life. Even if you had asked for less, I strongly suspect that they would have refused to test you. Why? Because (1) enough people are willing to be tested for free that it makes you look like a greedy a**hole, and (2) I think they would strongly question whether or not somebody like you would actually go through with the donation.
(And if you did refuse to go through 10 years later, what would be their recourse? Somehow I think the judge would refuse specific performance on public policy grounds. Additionally, what if your medical situation changed so that it was slightly less safe for you to donate — who would decide if you could beg out of the contract? It’s beyond ridiculous to even try to untangle the legal issues.)
Similarly, even if you managed to get initial testing, I kind of suspect that many patients would refuse to give you second stage testing if your desire for payment was too high.
In other words, you would be rejected well BEFORE anybody found out if you were a high probability for a match. Neither you nor the patient would ever find out.
Quote
November 2, 2009, 10:02 pmGuest12345 says:
Sounds like a rationalization to me. Every one of those are skills you could acquire if you chose to do so.
Fundamentally your judgment is that people who don’t put themselves and their families at risk out of pure charity at “undeserving of their own marrow.” Yet your excuse as to why you don’t engage in heroic, risky, charitable, life saving behaviors is that you don’t have the readily learned skill set. What’s more is that there are circumstances where the primary qualification is being there, you don’t have to be an olympic swimmer to jump into a river and fetch out a child.
You do realize that someone may choose not to donate without compensation for reasons other than pure greed. Maybe they don’t want to put their ability to provide for their family at risk.
I’m also curious as to whether you judge doctors and nurses as “oxygen wasters” as well?
Quote
November 2, 2009, 10:13 pmreadery says:
I certainly have no idea why NOTA was passed. I may think I know, but I know enough to know that I actually don’t. It seems to me that claims to certainty about people’s motivations for their behavior represent the sort of hubris that our Constitution wisely guards against. Claims to certainty about other people’s motivations — particularly when accomplanying a claim that the other people are wrong or misguided or their actions should be opposed by force of law — often lead to tyrrany.
Forgive me, don’t you think an outsider ought to be at least a little bit skeptical about a claim to be able to explain with certainty why Congress was motivated to the degree that one can claim an agreed-upon action that’s not inherently absurd was an error? Doesn’t this smack at least a little bit of claiming to know Congress’ purposes better than Congress does? You have every bit as much vested interest in being able to make these claims to certainty of knowledge as a stock promoter does to certainty about what the market will do.
Skepticism — recognition our knowledge often isn’t as sure as we think it is — is a foundation of deference to the Democratic process. One thing we most assuredly can never have certainty about is exactly what goes on in other people’s minds.
Congress might have had the purpose for the NOTA that you claim. Then again, they might not. They might even have had mostly that purpose, but balanced it by occassional regard for other purposes.
Quote
November 2, 2009, 10:16 pmreadery says:
Also, I’ll point out that rocks can hurt people, particularly rocks over five pounds. I see nothing the least bit irrational about including pet rocks in the hypothetical law. I certainly don’t see an Equal Protection problem — nobody is treated differently.
Quote
November 2, 2009, 10:20 pmTGGP says:
There is no “silly law” clause in the Constitution. The rule of law, not men, requires obeying the law as written rather than trying to divine intent or asking whether legislators were mistaken to include some area. If they actually made a mistake, bringing it to the attention of Congress should be sufficient and they can correct it, as with Ledbetter.
Quote
November 2, 2009, 10:26 pmSumBudy says:
I think you’re either misunderstanding what he wrote or you’re taking it out of context. What he actually said was:
Prohibiting donors from accepting cash payment for their marrow is not the same as preventing donors from receiving some type of medical/life insurance in return for the donation. In fact, if my memory serves me right, I did in fact receive a life/disability insurance policy and a guarantee of free medical treatment should anything go wrong.
I’m not saying that insurance would always adequately compensate the donor’s family should there be serious injury or death, but I’m just pointing out that nobody is suggesting that the donor and his/her family should take a risk without any possibility of being made whole. We can argue over whether or not the insurance policy is sufficient, but the law doesn’t prohibit the donor from receiving an insurance policy as protection against the risk taken. (Or, if it does, then the folks who handled my donation broke the law.) This is entirely different than demanding cash payment in return for the marrow.
Quote
November 2, 2009, 10:35 pmTGGP says:
Orin’s post on the problem with purpose in interpreting statutes:
http://volokh.com/2009/01/28/the-problem-with-purpose-in-statutory-interpretation/
Quote
November 2, 2009, 10:36 pmChrisTS says:
Ummm... I like ‘em plump and rosy cheeked,
Quote
November 2, 2009, 10:55 pmDebauched Sloth says:
I am genuinely puzzled by the hostility to judicial review evident in this thread. Putting aside the fact that judicial review has played a key role in our nation’s history for more than two hundred years and seems almost certainly to have been part of the Framers’ understanding of the Constitution they created, is there any public institution whose work seems less deserving of a presumption of legitimacy than Congress’s?
Assuming there are some things Congress is not supposed to do under the Constitution (dictating which plants we may grow in our backyards for non-commercial intrastate uses, let’s say), then we have a pretty stark choice: meaningful judicial review or lawless government.
Even assuming some judges will fail to discharge their offices competently or in good faith (which I concede), having a judiciary that occasionally tells Congress “no” when it should not seems much safer (and healthier) for the Republic in the long run than a Congress that doesn’t even pretend to care whether its actions are permitted by the Constitution. And the fiction that voters will restrain the legislature if the courts do not seems to me just that — a fiction.
Quote
November 3, 2009, 12:18 amCornellian says:
What makes a blood marrow donor a match? I assume they have to be matching blood types, but also that there’s something more that also needs to match, otherwise successful matches wouldn’t be so rare. So what’s the “something more?”
Quote
November 3, 2009, 1:24 amPatHMV says:
Jeff, I think you seriously weaken, not strengthen, your argument by claiming that Congress made a “mistake” in including bone marrow. The bottom line is that the text of the law enacted by Congress clearly bans the sale of bone marrow. That’s all that matters, in the end; the legislative intent and the legislative history is only relevant if the text is unclear. Since the text is clear, the legislative history is irrelevant... as it generally should be; conservative jurisprudential arguments have long cautioned against reliance on legislative history for very good reasons.
So you argument is simply that the law, insofar as it bans the sale of bone marrow, is unconstitutional because it lacks a rational basis. But the fact that you feel the need to dress it up by talking so much about the legislative history and other irrelevancies is a signal that you’re not all that confident in the rational basis argument standing alone.
If there were some vagueness in the law, such that it could be legitimately interpreted as not banning the sale of bone marrow, then all the “mistake” arguments and legislative history and comparisons to blood and so forth would be relevant and compelling, perhaps. But that’s not the case.
I look forward to critiquing your more detailed arguments on why you think the statute is unconstitutional. At this point, I really doubt that I will agree.
And I do hope you will address more the conservative legal criticism on the IJ’s reliance in this case on “rational basis” review, which has generally been used as a basis for judicial activism to overturn laws for no reason other than that the judge doesn’t care for them.
Quote
November 3, 2009, 2:01 amLior says:
Debauched Sloth: It seems to me that the argument in the lawsuit is not that the Constitution prohibits Congress from banning the sale of bone marrow (a typical and acceptable “judicial review” argument) but rather that the Constitution generally permits Congress to enact a single act banning the sale of both bone marrow and kidneys, but prohibits it from enacting the very same law if the main legislative rationale seems to apply to kidneys more than to bone marrow.
Having the Constitutionality of a law depends not on its operative provisions but on the rationale advanced for it at the time is not an obvious corollary of judicial review.
Quote
November 3, 2009, 3:58 amDebauched Sloth says:
Lior: Actually, as I understand it that is precisely the argument in this lawsuit, or at least one of them. As I noted in an earlier post, IJ typically asserts both equal protection and substantive due process claims in cases like this because they give judges two different lenses through which to conceptualize the fundamental problem with the challenged law, which is that it does not plausibly advance any conceivable public purpose.
So while an argument could (and possibly will) be made that Congress has no legitimate authority to ban the sale of bone marrow even in the abstract, that lack of authority is even clearer when you realize that Congress permits the sale of other renewable products like blood and sperm and cannot meaningfully distinguish those items from bone marow cells.
As I have said before on this site, treating rational basis review as a genuine test is a mistake because it is a fraud, not a test. Arguing whether a given law does or does not satisfy the rational basis standard is like asking whether my imaginary pony can beat up your imaginary pony.
If you take a careful look at the historical application of the rational basis test, particularly by the Supreme Court, I believe the theme that emerges from judges is this: “Look, legislatures — you’re dealing with constitutional values here (property, economic liberty, certain types of personal autonomy and privacy) that we feel we have to recognize but that we don’t really care about, so we’re prepared to let you get away with almost anything. Just do us a favor and at least pretend to have been acting in the public interest so we can rubberstamp what you have done without appearing to be complicit in outright corruption, invidious discrimination, or indefensible stupidity, OK?”
The basic thrust of this lawsuit, as I understand it, is that Congress failed to uphold its end of that bargain.
Quote
November 3, 2009, 6:50 amDjDiverDan says:
Just a thought — it seems to me that the best way to attack this law may be indirectly; Since bone marrow transplants are recognized as effective medical treatments that may, for some people, be medically necessary, it would clearly be contrary to Roe v. Wade and it’s progeny for Congress to outlaw bone marrow transplants completely. But suppose that a State decided, in the case of abortions, that performing abortions involved a high risk of psychological injury to the medical professionals involved as a result of the guilt for killing otherwise defenseless beings that had the capacity (if left unharmed) to become human beings, and that the way to minimize this injury was to freely permit abortions, but prohibit any payment to any medical professional involved, thus insuring that medical professionals who performed abortions did so out of purely altruistic motives, minimizing the guilt and psychological injury. Would that be subject to Constitutional attack as an “undue burden” on the right to an abortion? If Congress can constitutionally prohibit commercial transactions in the performance of otherwise constitutionally protected medical procedures, then certainly States must be free to prohibit commercial transactions in the performance of abortions. If Congress made a rational choice that prohibiting the payment of donors was necessary to avoid unduly influencing donors to accept a potentially injurious procedure for money, then certainly states are free to make the same judgment to protect the psychological wellbeing of the providers of abortion services. Let’s see if we can’t get a State to pass such a law quickly, and force the Supreme Court to address the issue. If the determination is that prohibiting commercial transactions unduly burdens the right to an abortion, then it seems pretty clear that NOTA is subject to the same infirmity.
Quote
November 3, 2009, 9:11 amThe Constitutional Right to Save Lives | Think Tank West says:
[...] IJ brought this suit on behalf of adults with deadly blood diseases, the parents of sick children, a California nonprofit, and a world-renowned medical doctor who specializes in bone marrow research. You can find more information here. Perhaps more interestingly, IJ senior attorney Jeff Rowes is guest-blogging about the case all week at the Volokh Conspiracy. Here’s his first post. [...]
David Chesler says:
That’s some sort of philosophical problem. Outside of quantum effects, knowledge doesn’t change the underlying facts (and even inside those effects, knowledge doesn’t shift the odds.)
And same if you don’t know you’re a match.
What hope? It’s clear what the terms are. (FWIW, in my final documents I’ve directed my representative to charge a dollar per solid organ. For fluids I’d like my going hourly rate plus compensation for housework I usually do. That’s pretty much what I get in the years when I win the jury duty lottery. After wasting a few hours at a poorly planned blood drive, that’s now the cost of my time for donating blood too. They can have the blood itself for the cookies and T-shirt.)
I answered the call. I wasn’t aware there was an a**hole exemption to the moral imperatve. My error.
So their son (or much more likely the patient I actually match somewhere down the road) will die because they are poor judges of character.
No different than if we hadn’t set the price.
I borrowed a car from someone who is out of the country. He may be gone permanently. If he comes back and wants the car, we’ve set a price that if I want to keep the car, or I’ve totalled the car, I’ll pay him for it. It’s a price we both can live with. If the car needs a major repair, we’ll renegotiate before the repair. (Until then, I’m doing regular maintenance and repairs. It’s now got much better parts in some places, and more worn parts in other places.) We didn’t have a problem setting a price for something that might or might not happen. It happens all the time.
Like the old joke, now that we’ve established the principle, we’re only negotiating the price.
Exactly. And that contributes to the shortage of donors.
I’m detecting an unstated assumption that people who ask for money are likely to be less honest than those who do it free. Nancy Reyes reports that with the minority potential donors. There are people who hold the opposite view, who find, for example, that the transaction between a prostitute and a john is much more honest than that between two people who have sex not for money, but for vague notions about promises of future behavior about which there is no meeting of the minds.
Quote
November 3, 2009, 9:48 amfpd3rd says:
I am a bone marrow transplant recipient and AML (leukemia) survivor. I had the good fortune to have a sibling who was a suitable match. There have been several questions posed regarding the harvest of bone marrow. The current state of bone marrow transplantation is that the immature blood cells are harvested using a process called apheresis which is in fact very similar to undergoing dialysis. The donor’s blood is filtered for a period of several hours to harvest enough cells for the transplant. It is not in any sense of the word a “surgical” procedure.
Most of the top cancer centers in America use this procedure to harvest pluripotent stem cells (bone marrow). I can see of no reason not to compensate donors as we do currently with blood and plasma donors.
Quote
November 3, 2009, 10:34 amKris says:
I’m not familiar with the law, but if NOTA was intended to outlaw the sale of non-regrowable components of the human body (as I interpret this post saying it was), how is it legal for women to sell their eggs? Was there an exception built in?
It naively seems to me that if you’re going to allow that, then allowing bone marrow compensation is a no-brainer.
Quote
November 3, 2009, 2:42 pmIs the Ban on Selling Bone Marrow Unconstitutional? - Freakonomics Blog - NYTimes.com says:
[...] A lot turns on this classic question of economics and ethics. Plaintiffs say that “[e]very year, 1,000 Americans die because they cannot find a matching bone marrow donor.” Plaintiff physician John Wagner says that of the 2000+ patients he has treated in need of bone marrow transplants, at least 20 percent “have died because they have been unable to find a matching bone-marrow donor.” Jeff Rowes, a senior attorney with the Institute for Justice, said, “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish is unnecessary deaths.” Rowes is guest blogging about the case this week at The Volokh Conspiracy. [...]
Is the Ban on Selling Bone Marrow Unconstitutional? - Freakonomics Blog - NYTimes.com says:
[...] A lot turns on this classic question of economics and ethics. Plaintiffs say that “[e]very year, 1,000 Americans die because they cannot find a matching bone marrow donor.” Plaintiff physician John Wagner says that of the 2000+ patients he has treated in need of bone marrow transplants, at least 20 percent “have died because they have been unable to find a matching bone-marrow donor.” Jeff Rowes, a senior attorney with the Institute for Justice, said, “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish is unnecessary deaths.” Rowes is guest blogging about the case this week at The Volokh Conspiracy. [...]
Tweets that mention The Volokh Conspiracy » Blog Archive » IJ’s Bone Marrow Case: An Intro -- Topsy.com says:
[...] This post was mentioned on Twitter by Fifty9, Thanos. Thanos said: Bone Marrow NOTA Constitutional Challenge http://bit.ly/467IRL [...]
Matthew C. Kriner says:
When you start to look for paths to speed up your computer and optimize it’s performance, you’ll come across the option of using a registry cleaner, and with these programs comes many options as well. Perhaps you are searching for freeware or maybe you are OK with spending a couple of bucks to get a quality product, but first you simply need to find out how to pick the top registry cleaner software for your needs. That is what we’re going to discuss in this article, we’re going to go over the features that you need to be trying to find when choosing a registry cleaning application. Click for more information.
Quote
December 17, 2009, 2:06 amRaphael Pompi says:
hey, your post
Quote
December 29, 2009, 11:02 pm