Yesterday, I sketched the legal theory behind the Institute for Justice’s challenge to the National Organ Transplant Act of 1984 in which our clients seek to strike down the provision that makes it a serious crime to compensate bone marrow donors.
Today, I’d like to explain the history of NOTA and why the inclusion of bone marrow in the statute is so irrational as to render that part of the law unconstitutional. This history will set up my posts tomorrow and Thursday in which I’ll discuss the applicable standard of review (rational basis test) and how judges should judge. I will specifically take on the view, expressed in some of the comments yesterday, that in cases like this, government power should be limited only by the ability of judges and government lawyers to dream up “conceivable” justifications for deprivations of liberty, even if those imaginary justifications have literally nothing to do with what the legislature intended.
We know from 1,500 pages of detailed legislative history why NOTA was passed. NOTA is the result of a wonder-drug called cyclosporine (a protein found in a Norwegian soil fungus) that can prevent the immune system from attacking a donated organ as a foreign invader such as bacteria. In short, cyclosporine made widespread organ transplantation possible.
The FDA approved cyclosporine in 1983 and suddenly the big obstacle to organ transplants—especially for tens of thousands on kidney dialysis funded by the federal End-Stage Renal Disease program—was the shortage of organs. The media was filled with pleas from celebrity spokespeople like Gary Coleman of the sitcom Diff’rent Strokes (a kidney recipient), which transformed organ shortages into a major public issue.
Various committees of the House (led by then-Rep. Al Gore) and Senate held hearings between the summer of 1983 and spring of 1984. The big issues were how to pay for cyclosporine, who would get it, how to allocate donor organs, which were treated as a scarce national resource to be distributed according to federal priorities, and whether organ transplantation should still be considered experimental (this made a difference to Medicare and private-insurance reimbursement).
In addition to these issues, Congress also focused on organ selling. H. Barry Jacobs (a Virginia doctor who’d lost his medical license after a mail-fraud conviction in 1977) decided to broker kidney sales between donors he would bring in from the developing world and rich Americans. This was a plausible business model because everyone has two kidneys, but needs only one, and matching kidney donors and patients is medically easy, just like matching blood donors and patients.
No one liked Jacobs’ idea. Testimony in both the House and Senate was almost uniformly against kidney sales and markets in other organs. Congress didn’t like that kidney surgery is invasive (and was perceived as very risky), that donated organs don’t regenerate, and that organs would move only from the poor to the rich. Congress also believed, naively in retrospect, that altruistic organ donors would be so numerous that organ shortages would not occur.
Congress, however, didn’t intend to criminalize compensation for renewable things. For example, the bill President Reagan signed on October 19, 1984 went to his desk with a Conference Report prepared jointly by the House and Senate. This report stated that the “term ‘human organ’ is not intended to include replenishable tissues such as blood or sperm.” Conf. Rep. No. 98–1127 (Oct. 2, 1984).
But bone marrow is “replenishable” and none of the concerns that motivated Congress to ban organ sales applies to marrow. Marrow isn’t an organ or a tissue. It’s just immature blood cells. Getting these renewable cells is safe (most donations now occur using the same equipment for donating blood plasma or platelets).
In fact, marrow was never discussed in the NOTA hearings. We have contacted people who were involved with NOTA’s drafting and no one knows why marrow is in the statute. Our working hypothesis is that a staffer plugged bone marrow into one of the later drafts because marrow is something that in common parlance gets “transplanted” (patients actually get donated marrow cells the same way they get donated blood: through an IV in the arm).
In other words, as I said yesterday, defining “bone marrow” as a “human organ” is not the result of Congress making a hard choice or drawing an imperfect line. It was sheer error, but an error so significant that it renders part of NOTA irrational and, hence, unconstitutional.
Let’s turn to economics for a minute. Not only are marrow cells totally different from the solid organs that Congress was worried about, the relief we seek in our constitutional challenge won’t create the sorts of markets Congress was worried about, either. The basic reason is that it is incredibly hard to match marrow donors and patients (much, much harder than in the organ context). If donors and patients don’t match at a deep genetic level, the donated marrow will kill the patient or cause a lifetime of intense suffering.
The only practical way to match marrow donors and patients is for doctors to search a national database of about seven million potential donors (mostly blood donors who’ve agreed to be on the list). If a donor pops up as a match (and if the donor can be found and is willing), the donation occurs anonymously. Thus, a marrow donor couldn’t go on EBay, for example, and sell marrow because the odds are infinitesimal that a patient would ever need that marrow type, much less need it right now. (A kidney EBay, on the other hand, would be very effective at matching donors and patients).
It is so hard to match marrow donors and patients that even with a seemingly huge national registry of potential donors, Caucasians find an unrelated donor only 75 percent of the time. Hispanics and Asians find a donor less than half the time. African-Americans find a donor only a quarter of the time. Patients of mixed racial heritage, whose numbers increase every day, face the longest odds.
Our clients don’t want to tackle this shortage with an open market. They simply want a charity to be able to use funds raised from third parties to compensate donors with a scholarship, housing allowance, or charitable gift. The goal is to get more people to sign up to the national database, get more people to stay in touch with it when they move, and get more people to follow through with donation if they’re ever asked to donate. Donors and patients will still remain anonymous and no transaction will occur between them.
Thus, there is no rational basis (and no discernable legislative intent) for applying NOTA—which is about banning open markets in nonrenewable organs that require invasive surgery to procure—to our clients, who want to use a charity to incentivize the donation of marrow—which is not an organ, and is renewable and safe to procure—in a context in which no open market will exist.
Tomorrow: taking on the rational basis test.
pete says:
I am no medical expert, but a quick google seach reveals plenty of sites that refer to marrow as a tissue. Edit: tissue is usually defined as a group of cells that perform the same function.
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November 3, 2009, 9:50 amJeff Rowes says:
A tissue is a group of cells or even just proteins with a collective structural purpose such tendons, which are parallel arrays of collagen fibers. Interestingly, blood is classified as a connective tissue because it connects the digestive and respiratory systems with the other parts of the body. The cellular components of blood are not themselves tissues because they have no structural function. Similarly, marrow cells are just that, a group of cells.
Organs are made of tissues. Organs combine tissues, which themselves are inherently structural, into even more complex structures necessary for life. The heart is composed mainly of myocardial tissue and then also nerve and connective tissue.
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November 3, 2009, 10:23 amDavidS says:
The link to http://www.marrow.org is broken.
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November 3, 2009, 10:33 amPatHMV says:
There’s that old saying that when the law is against you, argue the facts; when the facts are against you, argue the law; and when the law and the facts are against you, yell loud and pound on the table.
Your emphasis on the legislative history continues to signal to me that your rational basis argument is weak. If this were to ever make it to the Supreme Court, you would likely lose Justice Scalia in the first 5 minutes of your argument, if you started off with talking about the 1500 pages of legislative history... from a textualist perspective, the legislative history is utterly irrelevant, except perhaps in rare cases when there is genuine uncertainty as to the plain meaning of the words used in the statute. That is not the case here. The bottom line is that Congress DID intend to ban the sale of at least some renewable tissues, because it included bone marrow in the ban. Congress, as a body, acts ONLY through legislation. That is the only constitutional method by which Congress can act as a group. Outside the language of the bill itself, there is no general “intent” of the entire Congress. Erroneous or not, that’s what Congress did.
I’m sympathetic to a legislative change on this specific issue, but frankly your seeking redress through the courts based on the ludicrous use of “legislative history” is turning me against the whole idea.
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November 3, 2009, 10:35 amPatHMV says:
I would add that tossing out the statute on Constitutional grounds would NOT guarantee that the wholesome, charitably funded system you propose would installed. A court victory would simply mean that it is not a violation of NOTA to buy and sell human bone marrow. Just as there are sperm banks and plasma centers which regularly pay college students for their bodily fluids, so too could bone marrow banks be established. Yes, the closer degree of match required would make it a bit more difficult, but it could still happen. Heck, the plasma centers could have a check-box to allow tissue typing, and quickly have a massive database of potential donors, then offer them whatever some private client will pay, when a match is found, to actually go through with the donation.
Remember, the Constitution does NOT require that Congress enact libertarian social policies.
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November 3, 2009, 10:45 amBama 1L says:
I think this series of posts is going to make a lot of people who thought they supported IJ turn against it.
Can you talk about any efforts to get Congress to change NOTA?
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November 3, 2009, 10:51 amPatHMV says:
I would also recommend leaving out of your arguments the not-so-subtle policy arguments in favor of selling kidneys and the like. It makes me feel as if supporting your argument on bone marrow would be opening the door a crack more to full-fledged organ markets, and I think that’s a terrible, terrible policy decision. From past discussions on organ markets here at Volokh and elsewhere, I know that I’m not alone in that, no matter how obviously right a policy it may be to hard core libertarians. If your concern is truly with opening up this charitable concept to promote bone marrow donation, you should want to bring as many people as you can together on it, not alienate those who might accept your arguments regarding bone marrow but who do not want to be associated with anybody pushing for wholesale organ markets.
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November 3, 2009, 10:51 amPatHMV says:
To clarify my last point, I specifically recommend against saying that Dr. Jacobs had a “plausible business model,” and calling Congress “naive[] in retrospect.” These kinds of unnecessary asides loudly telegraph your staunch opposition to the entire concept of banning organ sales, not just your narrow opposition to the supposedly “irrational” ban on bone marrow sales. My first reaction upon reading them is to start explaining why Congress SHOULD ban organ sales. I won’t do that here, because the thread is too important to hijack; I’m just pointing out that by including such irrelevant asides, you invite the digression.
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November 3, 2009, 11:01 amDjDiverDan says:
Your Quixotic argument to overturn NOTA on a rational basis argument reminds me of a line from Tony Curtis in Operation Petticoat — “The boys in Vegas would say you are trying to make your point the hard way.”
WHY would you choose to assert such a weak constitutional argument, one which basically requires for a victory that a Court endorse the view that it has carte blanche to overturn any statute which it deems stupid, when there are stronger arguments available? See my last comment from your first post — under Roe v. Wade and its progeny, I think it’s very easy to argue that Congress simply cannot outlaw bone marrow donations and transplants; to do so would violate the recipient’s constitutional right to privacy in medical decisions. To the extent that banning commercial transactions materially reduces the number of donations (and hence transplants), which ought to be easy to prove, you have an “undue burden” argument which is NOT subject to such an easy test as “rational basis”. If NOTA’s ban on compensating bone marrow (or kidney) donors is constitutionally permissable, then States could effectively avoid the protections of Roe v. Wade by freely permitting abortions, but prohibiting the compensation of abortion doctors or clinics.
If you are going to persist in asserting only the “rational basis” argument against NOTA (or the even worse “Equal Protection” argument) solely for the purpose of making this a case on a pet Constitutional theory, you are really doing a disservice to your clients, the people who desparately need bone marrow transplants.
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November 3, 2009, 11:15 amSteve says:
Yesterday we were told that there was no need for a court to invent a hypothetical rational basis for the inclusion of bone marrow, because “we know why the law was passed.” You stated unequivocally that bone marrow was only included in the statute by virtue of a total error — “one that has surely cost tens of thousands of lives.” Many commentors trusted your assertions and argued that it was wholly appropriate for courts to correct a scrivener’s error.
Today we hear the exact opposite — apparently no one has any idea why bone marrow was included. Okay, so we have a different argument. Personally, I don’t think this is how rational basis review was supposed to work — 25 years later, unless someone can produce a witness to testify as to why a particular word or phrase was included in a bill, the courts get to invalidate it because there’s no good reason. As I said yesterday, there is no constitutional requirement for Congress to show its work.
If this is the rational basis argument, which I assumed from the outset would be the stronger argument, I’d hate to see what the equal protection argument is going to look like. The medical self-defense arguments I’ve seen from Prof. Volokh and others have much more appeal to me than all this “it’s a 14th amendment violation to treat renewable cells differently from non-renewable ones.”
Really, this issue cries out for a legislative solution, one which allows for the type of mild incentivizing your clients propose but would foreclose the serious abuses that might arise from a completely unfettered market.
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November 3, 2009, 11:27 amMalvolio says:
Much funnier when you say it right: “When the law is against you, pound on the facts; when the facts are against you, pound on the law; when the law and the facts are against you, pound on the table.”
I think the rational-basis argument is doing so poorly here, in front of a very sympathetic audience, that the IJ might want to consider emphasizing the disparate impact instead. Like Davis-Bacon (in effect, not in intent), this law has a horrendously negative effect on blacks in particular — maybe there’s some traction there.
Kind of sad that “this law kills thousands of Americans for no reason” isn’t a strong-enough argument and we have to resort to “this law kills thousands of Americans, many of them minorities.”
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November 3, 2009, 11:35 amyankee says:
What I find oddest about this focus on legislative history is that it seems like a statutory argument: because “bone marrow” was included by mistake, it should be disregarded as a scrivener’s error. But for some reason IJ is trying to shoehorn the legislative history into a Constitutional argument. This makes little sense to me: either the statute has a rational basis or it doesn’t, regardless of the legislative history.
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November 3, 2009, 11:36 amyankee says:
Regardless of the theoretical merits of this argument, in practice it’s DOA. The vast majority of people are horrified by the idea of organ sales, Supreme Court Justices included. There’s no way to distinguish sales of bone marrow from sales of kidneys under the privacy argument, and the Supreme Court isn’t going to sign off on a constitutional right to sell organs no matter how strong the argument is.
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November 3, 2009, 11:53 amDjDiverDan says:
I don’t doubt that people are “horrified” by the notion of organ sales. I myself would be horrified, if the source of a sold Kidney was a poor person kidnapped from the slums of Calcutta to have a kidney forcibly removed for shipment to a rich patient. But assuming that you could eliminate organs obtained through criminal assault, that it was purely voluntary transactions that we were talking about, would you still be horrified? Why? Is it the risks inherent in organ donation? Kidneys do not grow back, but the Liver does — would you OK the sale of Liver tissue for transplant, but not Kidneys? What about voluntary transactions by the terminally ill — say I have terminal pancreatic cancer, no life insurance and no savings, and only days to live, but I could assure my family’s financial future if I could sell my perfectly satisfactory Kidneys, Heart, Lungs and Corneas to willing buyers on my deathbed? Will you force my surviving wife and children to live in poverty because of your “horror” at the thought of organ sales? Or are you simply stating that it is perfectly permissable for Judges and Justices to ignore constitutional provisions whenever the results strike them as “wrong”?
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November 3, 2009, 12:16 pmOther Person says:
Jeff –
Your post leaves me confused about one point. You clearly believe that the current law does not survive rational basis review. But (to the extent you can discuss it without jeopardizing your client), can you tell me whether a law prohibiting open markets would pass muster under your view of rational basis review?
In other words, would a law pass rational basis review if it permitted small scholarships but prohibited an open market for rare bone marrow types?
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November 3, 2009, 12:17 pmsk says:
Gotta agree with just about everybody. I don’t even understand the supposed rational behind the rational basis test (the real rationale is, of course, ‘give the judge the rhetorical cover to overrule the legislature’). But your constitutional argument is utterly unconvincing, even if your scientific/medical argument is correct.
Just push for rewriting the law. That method even has the side benefit of being democratically defensible.
Sk
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November 3, 2009, 12:19 pmjhubme_24 says:
Uhh...I don’t know if I’m missing something, but doesn’t the high chance of rejection of transplanted marrow provide plenty of rationale?
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November 3, 2009, 12:27 pmkrs says:
As with previous posts: totally unconvincing today, and I’m now more anxious than ever for the post explaining why rational basis review and “judicial minimalism” should go away. It’s conceivable that the inclusion of marrow in the statute was due to a mistake, but it’s data point number 1 million or so in support of the saying about laws and sausage.
I doubt that even the liberals on the Court would go for this, given the language in the statute.
Also, the definition of “organ” in the statute includes “skin,” which isn’t totally replenishable like blood, but isn’t gone forever once donated like a kidney. I’ve always thought that references to A Man for All Seasons were a little corny, but as I read this, I’m constantly reminded of this and I see a crusade to chop down every law in sight to help out bone marrow donors. If the Court tosses rational basis review and/or starts accepting these sorts of arguments, the Warren Court 2.0 will be back with a vengeance. I don’t doubt the IJ’s sincerity or its good intentions, but the prospect of it succeeding in this is frightening.
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November 3, 2009, 12:34 pmsome guy in ohio says:
Two-time kidney transplant recipient here. For what it’s worth.
As jhubme_24 says, there is a substantial risk to the recipient when bone marrow tissue is donated. This is not generally the case with blood and sperm. Yes, there are some rare, well-understood risks from receiving blood, but nothing like the very high risk of rejection of donated marrow. This is surely a rational basis for including bone marrow on the list. Full stop.
Just lobby to get the law changed, solicitor.
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November 3, 2009, 12:38 pmyankee says:
I was speaking to the realpolitik of litigation, not to whether it was “permissible.” Assuming for the sake of argument that the privacy argument is a sound one, it would be poor litigation strategy for IJ to base its claim on it.
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November 3, 2009, 12:57 pmDavid Nieporent says:
That might be an argument for banning bone marrow transplants, but how it can be a rational basis for banning compensation for bone marrow donors?
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November 3, 2009, 12:58 pmanon says:
In what way does prohibiting compensation of bone-marrow donors matched through the national registry advance the government’s interest in reducing tissue rejection? By what conceivable mechanism are donations received from compensated donors more likely to be rejected than those from uncompensated donors?
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November 3, 2009, 12:59 pmNobody Really says:
I wrote in a different comment, there is a rational basis — the potential for extortion based on the fact that the donor pool for bone marrow is much smaller, allowing the donor to demand exorbitant prices because unlike blood and sperm, there is no alternative for the recipient.
As a policy matter, to the degree that the above concern is even practical (it would require investigation or just experiment with permitting a market price and see if such a thing happens) I would rather see it addressed by a price control (say no more than 2x the average price for blood plus any actual expenses incurred and insurance for any negative effects from the donation (side effects of the procedure) or some similar formula), or perhaps some other less intrusive way, but it is rational to just set the price at $0 to avoid the issue.
On the policy issue everyone on this comment thread seems to agree, and yet they don’t buy constitutional argument. This isn’t going anywhere in court.
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November 3, 2009, 1:02 pmDerHahn says:
Despite your studied ignorance, I must assume that you are well aware that bone marrow donation is often (though not exclusively) an invasive surgical procedure. You’ve discovered that no mention of this basis for including it on the list of organ/tissue donations that must be uncompensated wasn’t recorded in debate over the bill.
I’m willing to bet a search of IJ computers would find outlines for briefs on why kidney donors should be allowed compensation if bone marrow donors who undergo similar surgical procedures are being compensated.
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November 3, 2009, 1:03 pmNobody Really says:
I don’t get that argument. Because the recipient faces a greater risk, the donor shouldn’t get paid? Their need to pay would prevent them from taking the risk? If the donor faced a greater risk, that would be more applicable.
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November 3, 2009, 1:05 pmDavid Welker says:
If outlawing compensation for bone marrow transplants was simply a mistake, that makes the case for lobbying Congress (rather than the Courts) to change the law even stronger. If it is a mistake, you should have absolutely no problem alerting your Congressional representative to this mistake, drafting a fix to this law, and having your Congressional representative introduce it as a bill or an amendment that will easily get majority votes in both houses of Congress.
This is not anti-judicial review. It is pro-democracy. The case for judicial review is strengthened when Congress refuses to change a law despite Constitutional problems. Judicial review is an extraordinary remedy and should not be used to solve problems that could be easily solved by the democratically elected and democratically accountable legislature. Your argument that this was merely a mistake and not the intent of Congress would indicate that it should be fairly easy to get Congress to change the law. For that reason, I think the argument that this was a mistake makes the case for judicial invalidation weaker rather than stronger.
I predict that your lawsuit will be thrown out of court. Bone marrow can easily be distinguished from blood or sperm, in that extracting it is much more invasive than extracting blood or sperm and also more risky. Your case is a likely loser.
I probably agree with you on policy (I would have to study the issue more carefully to be sure) but I definitely disagree with your strategy for bypassing the democratic process.
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November 3, 2009, 1:07 pmKen Arromdee says:
I know of no way to allow people in a situation like the one you describe to be able to sell organs without also allowing situations that are much more questionable. So the answer is “tough”.
Many things done by society will hurt some individuals–a justice system will inevitably convict some innocent people, for instance. Asking “what if I was in the unusual situation where selling organs helps my family without shortening my lifespan since I’m dying anyway” is like asking “what if I’m one of the few innocent people who gets caught by accident in the justice system”. It’s not a reason not to have a justice system, or not to have restrictions on organ selling. Certainly you could do all you can to minimize such cases, but it’s a fact of life that no system is perfect, and asking “what if I’m one of the rare people who gets hurt by your system” is not a reason not to have it.
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November 3, 2009, 1:08 pmDerHahn says:
David Nieporent and anon, the point is that a rational argument for including bone marrow with kidney, heart, liver and other organ/tissue donations covered by NOTA, and distinguishing it from blood product or semen donation, *can* be constructed despite the IJ’s hand waving about the legislative record.
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November 3, 2009, 1:08 pmanon says:
I see. Bone marrow, like solid organs, has a higher likelihood than blood of harming the recipient. Congress has a legitimate interest in reducing this harm. Congress decided to reduce this harm by reducing the total number of bone-marrow transplants, which they’ve accomplished by prohibiting compensation and creating a shortage of donors. Perfectly rational. Gives me hope for my plan to reduce medical malpractice by prohibiting paying doctors for their services.
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November 3, 2009, 1:27 pmDavid Chesler says:
And vice versa, I think markets in both are a grand idea, for exactly the same scenarios, and we can refer to those past discussions.
I agree with PatHMV, I’d like to hear an IJ statement one way or the other. I’m not a doctrinaire purist — strange bedfellows and all that — but nobody likes being played.
Does Congress really not have version control?
I also agree with Steve in that I don’t like calling any bit of any legislation that seems stupid a scrivener’s error unless at a later date someone can find the stated reason. (Although if Congress itself were saddled with the kind of documentation requirements that apply to work under government contract, that might be a good idea.)
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November 3, 2009, 1:58 pmMichael Foti says:
We just wrote a piece detailing the IJ’s lawsuit on our blog. I can say from experience (my cousin needed a bone marrow transplant) that this is an issue that plagues many Americans. At the end of the day, I have to agree with Some guy in Ohio, lobbying to get the law changed would be a more reasonable way to go about it.
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November 3, 2009, 3:11 pmloki13 says:
I am somewhat disappointed in this post.
1. I asked in a previous thread for actual case law to support the proposition that an absence in the record prohibits judges from recognizing valid rational bases for a law. I don’t see any here; if the OP is argung for a modification of the current law, that is one thing, if he is arguing for the application of existing precedent, that is another. He doesn’t say what he’s arguing for, other than it’s wrong.
2. I think the spirited discussions in these threads give lie to the OP’s beliefs that there is *no rational basis* for this law. It seems that there are, in fact, people who agree with it. Therefore there is a *rational basis*. It might be an unwise or unsound law, but it is not irrational.
3. The OP is relying on some legislative history, some conference reports, and interviews conducted more than 20 years after the fact do determine Congressional intent CONTRARY to the actual explicit text of the bill? Not to inform... not to decode ambiguous language... wow. And the IJ is conservative?
I find some of the IJ’s work to be refrshing and helpful. But these posts, so far, remind me of the first law of holes.
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November 3, 2009, 3:16 pmPhil says:
You might be interested in a WSJ op-ed Jeff Rowes wrote called “Judicial ‘Activism’ Isn’t the Issue.”
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November 3, 2009, 3:47 pmsome guy in ohio says:
I said “rational basis”, David and anon. That’s a pretty low barrier.
Don’t assume that by recognizing there’s a clear rational basis, I agree with the law. I don’t agree with it, but I think it’s constitutional.
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November 3, 2009, 4:13 pmPatHMV says:
Phil... thank you for the link to Rowes’ WSJ op/ed; it explains a great deal. While I think the Congress has gone badly off track, since the New Deal, in regulating economic affairs, I believe that the solid bulk of what they’ve done is constitutional, so I am going to be opposed to anybody who wants to throw out the past 60 years or so of jurisprudence in this country. Moreover, I generally find that people who claim that we as a nation have suffered serious economic harm as a result of this government interference since the New Deal are seriously out to lunch. While economic cycles have continued to exist, we’ve on the whole greatly expanded the economy and our productive capabilities since then. I want to restrict government interference in the economy, to be sure, but not eliminate it; I’ve seen no real evidence that would convince me that we’d be even more economically powerful had the Supreme Court never overruled Lochner.
Moreover, Rowes’ description of the Framer’s setting up the judicial branch to protect our rights is, I think, not terribly historically accurate. Yes, they provided, implicitly, for judicial review, even on the constitutionality of statutes. But a reading of the Federalist Papers makes it clear, I think, that they viewed the primary mechanism for protecting our rights to be the structural conflicts between the two chambers of Congress and between Congress and the President.
Indeed, I think much of the problems we’ve seen with Congressional overreaching has been precisely because that body has institutionally given up any pretense of giving serious consideration to the constitutionality of its own actions. It has, in essence, decided that it will enact any legislation it wants, and leave it to the Court to determine whether it is within the scope of Congressional power. This is dangerous, I think, and attitudes such as that evinced by Rowes’ op-ed, placing undue reliance on the judicial branch to protect our rights from the enactment of laws (as opposed to the enforcement of laws), promote that attitude.
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November 3, 2009, 5:10 pmallanjacobs says:
During the bad old days, people could donate blood for money. There were parallel voluntary and paid blood donation systems. Many, if not most, paid donors were chronically down and out people, with a high incidence of blood-borne diseases. And, in any event, someone selling blood had more motivation than a volunteer donor not to be frank about a history of known disease or of risk factors that would exclude him from the donation pool. The state of testing was such that these could not be detected reliably. It was common knowledge among physicians that commercial blood was much more dangerous to administer than volunteer blood.
The same circumstances conceivably would be true among paid marrow donors vis-a-vis volunteers.
Whether empirically validated or not, this comprises a basis for accepting the constitutionality of the current statute on a rational basis. And, for the benefit of those who didn’t take Con Law, “rational basis scrutiny” is a term of art that means that any plausible nexus between the proposed remedy and a legitimate government purpose overcomes constitutional objections to the law. It doesn’t mean that the remedy is correct or rational. Rational basis scrutiny has been almost impossible to apply to invalidate a law.
Technology for detecting blood-borne diseases is much better now, and the law may not protect anyone. But recipients of marrow transplants have to take immunosuppressive drugs unless the donor is an identical twin, and the protective effect of the law depends on who the donor pool will be (and they aren’t all clean living folks who happen to be down in their luck) and the likelihood af transmission of an infectious disease with the transplant.
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November 3, 2009, 5:15 pmA grateful father says:
Our son donated bone marrow and saved our daughter’s life 6 years ago. The risk to a donor is minimal. He felt like he’d fallen off his bike, sore for maybe two days.
Our neighbor, a doctor, cried when he heard that our son was a perfect match. The odds of our daughter surviving had doubled from 50% to near 100. There were heartbreaking stories at the children’s hospital of parents not finding matches.
The inclusion of bone marrow in the statute is not just irrational, it is criminal. A national database will save lives.
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November 3, 2009, 5:21 pmPatHMV says:
The time and money spent litigating and wrangling over these issues would be much better spent by doctors and scientists developing ways to grow new organs from a patient’s own stem cells. We’re very, very close to being able to do that, at least for some organs.
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November 3, 2009, 5:26 pmOther Person says:
There IS a national database: The National Marrow Donor Program
Since the NMDP is a registry, exactly what are you complaining about?
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November 3, 2009, 6:08 pmSteve says:
Since the NMDP is a registry, exactly what are you complaining about?
The ban on compensation costs lives in the case where someone would donate their marrow to save someone’s life, but declines to do so because they’re not getting paid. I’d say the morally culpable party in that scenario is the person who refuses to save another’s life unless they’re compensated, as opposed to the government which bans compensation, but to each his own.
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November 3, 2009, 6:29 pmEinhverfr says:
I am fairly sympathetic to Jeffrowe’s point here. A close re-reading of the post suggests he has not gotten to his actual legal arguments yet and is just covering background. We will see what arguments are brought up next time.
I am NOT in favor of kidney markets. However, being able to sell bone marrow is not fundamentally different from being able to sell plasma. Or at least it is more similar to that then to selling a kidney.
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November 3, 2009, 7:00 pmPatHMV says:
Steve, I say that no person is morally culpable for choosing not to undergo medical procedures to benefit others. I think doing so is an incredible act of generosity, but I am deeply offended by the argument that many in favor of organ sales have made, that one has some sort of moral obligation to give your “extra” kidney, or whatever, to another person. This is one of the many things that makes me fear a society which allows organ sales, a growing disregard for individual bodily integrity, by finding obligations, moral or otherwise, to sell one’s body parts or undergo invasive medical procedures.
Remember a few years back in Germany, a woman was denied unemployment benefits because she refused to accept a job as a prostitute. What rules would we adopt? What rules would Mr. Rowe’s jurisprudential arguments allow us to adopt for, say, qualifying for Medicaid? Right now, you have an obligation to spend all but $X of your net worth, both cash and assets, in order to qualify. If the going rate for a kidney of your type is, say, $50,000, will you have an obligation to sell your kidney before you qualify for government assistance?
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November 3, 2009, 7:33 pmSteve says:
It’s not that I think you have a moral obligation to save someone’s life by donating bone marrow, but moreso that if you’re only willing to save their life if you get paid, you’re a pretty bad person. Of course, the moral judgment is neither here nor there. It’s not like I want to pass a law that enshrines my moral judgment, I’m just saying how I feel.
As others have pointed out, donating bone marrow is more like donating a kidney than donating blood in the sense that there’s a specific recipient who needs your bone marrow right now, as opposed to a mere possibility that maybe your blood might help someone someday or it might not. So I don’t think anyone has a moral obligation to register with the bone marrow database — it’s completely up to you — but if you register, and they tell you “we have a match, you can save this person’s life if you do the procedure” then I don’t have a high opinion of someone who would respond “fine, I’ll do it, but only if I get paid $500.”
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November 3, 2009, 7:48 pmjhubme_24 says:
The rational basis is that allowing compensation from donors might incent bad behavior from the donors or custodians of their donated marrow (such as misrepresenting HLA-testing results or the health of the donor). Such bad behavior is likely to lead to graft-versus-host-disease and, ultimately, a rather poor prognosis for the recipient.
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November 3, 2009, 7:55 pmDavid Chesler says:
Steve, how do you feel about someone who says “Fine, I’ll do it, but only if you allow me to save not just one, but hundreds of lives, by your repealing NOTA?”
jhubme_24, how do you fake HLA results? Might calling people who give it away selfless heros encourage people to donate who shouldn’t?
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November 3, 2009, 8:34 pmloki13 says:
These threads have been fascinating so far. While I started out be thinking that this was simply a rather silly law, I can now see that there might be reasons for having a ban in place for compensation of bone marrow. Not sure I agree, but still.
If only there was some deliberative body that made laws that could decide these sorts of things, a body that was accountable to the people!
Anyway, from what I gather from the linked-to editorial, the IJ just doesn’t believe that Congress should be passing (has the power granted under the Constitution) to pass these sorts of laws. Now, that’s an interesting argument. But that’s a different argument than saying that there’s no rational basis for the law.
I disagree with both arguments, but I at least find the first plausible (if unsound for a number of reasons). I still can’t wrap my head around this.... why on earth would a conservative group choose to advance their agenda by empowering the judiciary to strike down laws they *simply disagree with*, as opposed to finding a hook that will come back to bite them in the... posterior.
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November 3, 2009, 9:40 pmMike McDougal says:
What a useful comment.
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November 3, 2009, 11:31 pmyankee says:
Quite possibly, but the question is whether there’s a “rational basis” for the law, not whether the law is good policy.
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November 3, 2009, 11:48 pmDjDiverDan says:
Some people might claim that the 9th Amendment, reserving to the People all rights and privileges in areas not expressly delegated to the Federal Government or the States, does precisely that. It’s really a shame that the Supreme Court has never taken the 9th Amendment seriously.
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November 4, 2009, 10:52 amDavid Chesler says:
Yankee, I see. I thought he was seriously suggesting it, and I thought allanjacobs was also serious. What’s the minimum amount of rationality required for something to pass a rational basis test? Although if I read today’s entry correctly, Jeff Rowes would reject rational basis tests completely, limiting the federal government to its explicitly enumerated powers. That would be a good idea, but there would still be corner cases, and since one of its explicitly enumerated powers is to amend the Constitution, I’m sure if the country had gone that way we would just see more and more amendments that impact the several states or that expand federal power anyway.
It would be lovely, but I can’t see that this case is going to go against that tide.
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November 4, 2009, 11:46 amThe Volokh Conspiracy » Blog Archive » IJ’s Bone Marrow Case: Judical Engagement, Not Activism says:
[...] how to apply principled judicial engagement to the bone marrow case (see previous posts here, here, and here), and I hope to explain this in a way that responds to some of the concerns in the [...]
The Volokh Conspiracy » Blog Archive » IJ’s Bone Marrow Case: Wrapping Up says:
[...] Eugene for giving us an opportunity to discuss our latest case this week (previous posts here, here, here, and here). I want to use this last post to respond to a few [...]
Bone Marrow: why must patients depend on those who donate it? Why not let people sell it? - Writer, Presenter, Magical Dad - Brian Crouch says:
[...] IJ’s Bone Marrow Case: History of NOTA [...]