It naively seems to me that if you’re going to allow that, then allowing bone marrow compensation is a no-brainer.

by refusing to go on the registry, one is playing G_d with that person who has no match instead of you.

SumBudy: 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.

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.)

If you KNOW that you’re a match, then you could easily be a person’s only hope.

And same if you don’t know you’re a match.

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.

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.)

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

I answered the call. I wasn’t aware there was an a**hole exemption to the moral imperatve. My error.

(2) I think they would strongly question whether or not somebody like you would actually go through with the donation.

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.

(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.)

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.

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.

Like the old joke, now that we’ve established the principle, we’re only negotiating the price.

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.

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.

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.

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.

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.

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.

loki13: I think we have a nominee for eating Irish Children!

Ummm… I like ‘em plump and rosy cheeked,

Guest12345: 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 think you’re either misunderstanding what he wrote or you’re taking it out of context. What he actually said was:

Insignificant Dallasite: 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.

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.

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.

insignificant dallasite:
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.

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?

David Chesler: David Chesler says:
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.

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.)

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?)

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.

Guest12345: 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?

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.

David Chesler: David Chesler says:
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.

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.)

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?)

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.

David Chesler:
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?

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.

Guest12345:
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)”.

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.

Jeff Rowes: Quick note on some of the comments.Donating bone marrow is safe but unpleasant.
….

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.

mmmm….immigrant infants…

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.

Pragmaticist: What about “medical self-defense” of one’s life as a legal basis for challenging the law?

Not a lawyer, but as I recall, Federal courts do not recognize a medical necessity defense. Some states do but not the federal government.

Roger: I was going to say that about those who refuse to pay for marrow.

I think we have a nominee for eating Irish Children!

I …think that anyone who refuses to donate marrow on the basis of not getting paid … is a selfish oxygen waster

I was going to say that about those who refuse to pay for marrow.