Jeff Rowes on IJ's Suit Challenging Ban on Compensation for Bone Marrow Transplats

November 2nd, 2009

At Volokh, Jeff Rowes provides a sketch of IJ’s new suit challenging NOTA and bone marrow transplants. Read the entire post, but here is the constitutional theory:

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.

I am skeptical if a Court will buy either of these arguments. If a Court goes full Lee Optical rational basis, this law will be upheld. If the Court gets an opinion similar to the casket case in Craigmiles, they have a shot. The equal protection argument seems weaker. Because these are not suspect classes, rational basis scrutiny also applies. Proving arbitrary government action is daunting. But IJ has one of the best track records of challenging the rational basis test, and I look forward to seeing their progress.

For the human element, definitely check out this IJ video: