The Institute for Justice won a victory in the 9th Circuit in Flynn v. Holder, which held that donors of bone marrow can be compensated. Now, HHS wants to pass a rule that would overturn the decision. The WSJ editorializes against this change:

When the Ninth Circuit declined to rehear the case, the Administration mobilized HHS, which has proposed a rule that would overturn the Ninth Circuit and define marrow extracted from the bloodstream as an organ. The purpose, says the rule, is to “ban the commodification” of bone marrow used in transplants, “encourage altruistic donations, and decrease the likelihood of disease transmission resulting from paid donations.”

None of these arguments stands up to scrutiny. If banning donor compensation encouraged altruistic donations, it would already have done so. The ban has been in place for decades and the result is chronic bone-marrow shortages, which have disproportionately affected minorities who have a harder time finding a donor match.

The claim that compensation would increase “disease transmission” is also a straw man. The thousands of people on the waiting list, including many with leukemia and blood cancers or anemia, often need marrow donation to stay alive. Any marginal increase in risk pales next to the certainty of death.

Treating bone marrow as a public resource distributed by the federal government hasn’t worked. The Administration’s campaign to reimpose the compensation ban and overrule the courts is another example of its penchant for political and bureaucratic control over medical decisions. The rule is open for public comment until December 2, and patients and doctors ought to express their opposition on moral and humanitarian grounds.