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Flynn v. Holder: the fight for marrow cell liberation

Posted by Richard on October 31, 2009

The Institute for Justice is one of my favorite non-profits. This "merry band of libertarian litigators" just keeps finding wonderful ways of using the courts and the court of public opinion to fight for individual liberty, especially economic liberty. And they keep winning. IJ has been the leader in the fight against eminent domain abuse and for school choice, and it's helped countless minority entrepreneurs overcome arbitrary and discriminatory licensing laws, regulations, and other barriers to entry erected by governments.

On Wednesday, IJ and a diverse group of plaintiffs took on another stupid and unconstitutional law against capitalist acts between consenting adults — and this time there are many lives at stake. Flynn v. Holder seeks to overturn the ban on compensating marrow cell donors:

Every year, 1,000 Americans die because they cannot find a matching bone marrow donor.  Minorities are hit especially hard.  Common sense suggests that offering modest incentives to attract more bone marrow donors would be worth pursuing, but federal law makes that a felony punishable by up to five years in prison.

That is why on October 28, 2009, 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 joined with the Institute for Justice to sue the U.S. Attorney General to put an end to a ban on offering compensation to bone marrow donors.

The National Organ Transplant Act (NOTA) of 1984 treats compensating marrow donors as though it were black-market organ sales.  Under NOTA, giving a college student a scholarship or a new homeowner a mortgage payment for donating marrow could land everyone—doctors, nurses, donors and patients—in federal prison for up to five years.

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal.  That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again.  The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

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.  A victory in this case will not only give hope to thousands facing deadly diseases, but also reaffirm bedrock principles about constitutional protection for individual liberty.”

Read the rest to learn about the people involved and their compelling stories.

It's the time of year when I make the bulk of my charitable contributions, and IJ is always near the top of my list. This suit strikes me as a terrific cause, so I'm going to donate online right now. Won't you help, too?

HT: Megan McArdle, whose column about this in the Atlantic I strongly recommend.

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