The Corner

Re: Organ Donors and Judges

IJ isn’t claiming that the ban on compensating bone-marrow donors is unconstitutional because it’s bad policy, but rather because it infringes on individual liberty without a rational basis — thereby constituting a deprivation of liberty without due process of law. And the deprivation of liberty is quite severe: IJ’s clients are very sick with cancer, and they will likely die unless they are allowed to offer compensation to encourage donors to come forward to engage in voluntary transactions — transactions that will save real lives, not cheapen life in some abstract sense. 

Now, courts engaging in rational-basis review are extremely deferential to legislatures, as perhaps they should be. Under this level of scrutiny, practically any rationale that Congress offers to support a law will pass constitutional muster. But what’s interesting about IJ’s claim is that it does not depend on a free-ranging, independent consideration of the law’s “rationality.” It is instead limited to the rationale that Congress itself supplied when it passed the law — thus it does not ask judges to act based on their own policy sense, but rather on Congress’s stated legislative purpose.

IJ’s argument is that the law does not make sense even on its own express terms. IJ’s lead attorney on the case, Jeff Rowes, explains this here:

We know what Congress intended when it enacted [the ban on compensating organ donors]. 1,500 pages of detailed legislative history make it clear that Congress wanted to outlaw markets in kidneys and other solid organs. . . . Congress didn’t intend to criminalize compensation for renewable cells such as blood or sperm. In fact, the Conference Report the House and Senate jointly sent to President Reagan with the bill he signed said so.

Bone marrow is renewable, but it was anomalously included on the list of banned “organs.” This is irrational in a very narrow and provable sense, based on the stated purpose of the law.

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