Bone Marrow - NOTA Challenge

Flynn v. Holder
Challenge to the National Organ Transplant Act

Doreen Flynn, a single mother of five children from Lewiston, Maine, is a compelling example of the courage and determination parents must exhibit when their children are struck with a deadly blood disease.  Three of Doreen’s daughters have Fanconi anemia, a serious genetic disorder whose sufferers often need a bone marrow transplant in their teens.

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Client Video: Saving Lives: Challenging the Ban on Compensating Bone Marrow Donors


Watch the Rock Center with Brian Williams feature on the Flynn family.

Every year, nearly 3,000 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 launch a legal fight against the U.S. Attorney General to put an end to a ban on offering compensation for bone marrow donors.  

The National Organ Transplant Act (NOTA) of 1984 treats compensation for 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 would 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.
    

On December 1, 2011, the Ninth Circuit ruled in our favor, holding that the National Organ Transplant Act’s ban on donor compensation does not apply to the most common method for donating marrow. The U.S. Attorney General sought to have that ruling overturned by the full Ninth Circuit, but was unsuccessful. Our victory became final in June 2012, and a new tool in the fight against deadly diseases became available, when the Attorney General declined to appeal its loss to the United States Supreme Court.




 
 
 

Essential Background

Photos and Videos

Backgrounder: Saving Lives:  Challenging the Federal Ban on Compensating Bone Marrow Donors

 

Latest Release: Federal Officials Move to Block Life-Saving Research; HHS’ Proposed Rules Would Undo Court Ruling Legalizing Bone Marrow Compensation (November 13, 2013)

Client Video: Saving Lives: Challenging the Ban on Compensating Bone Marrow Donors 
Video: Press Conference October 28, 2009
Video: Court Argument: Compensate Bone Marrow Donors to Save Lives

Photos: IJ Clients Doreen Flynn and Akiim DeShay 

Podcast: IJ Senior Attorney Jeff Rowes Discusses the Case on Cato's Daily Podcast
Launch Release: Cancer Patients Sue U.S. Attorney General in Bid to Save Lives (October 28, 2009) Photos: Case Launch
Audio: Ninth Circuit Argument (February 15, 2011)

 

Legal Briefs and Decisions

Decision from the 9th Circuit December 1, 2011

IJ Complaint filed October 26, 2009

 

Case Timeline

Filed Lawsuit: 

 

October 26, 2009

Court Filed:

 

U.S. District Court, Central District of California

Decision(s):

 

Decision from the 9th Circuit December 1, 2011

 Current Court: U.S. District Court, Central District of California

  Status:

 
Decision from the 9th Circuit December 1, 2011

Additional Releases

Maps, Charts and Facts

Release: Final Victory for Cancer Patients In Bone Marrow Donor Case (June 25, 2012)

Bone Marrow Statistics

Release: U.S. Attorney General Seeks 9th Circuit En Banc Review In Bone Marrow Compensation Case (January 18, 2012)
Release: Cancer Patients to U.S. Attorney General: Drop Bone Marrow Legal Fight & Save Lives (December 6, 2011)

Op-eds, News Articles and Links

Release: Cancer Patients Win Bone Marrow Legal Fight Against U.S. Attorney General (December 1, 2011) Article: The Case of the Bone Marrow Buyer Reader's Digest (June 6, 2014) 
Release: Tuesday Federal Court Argument: Compensating Bone Marrow Donors Could Save Lives But the Government Bans It (February 15, 2011)

Opinion: HHS vs. cancer patients The Hill (May 16, 2014)

Release: Hearing in L.A.: Cancer Patients Seek to Remove Federal Criminal Ban On Compensating Bone Marrow Donors (March 10, 2010)

Article: IJ Makes the Case That Bone Marrow Donors Should be Compensated; Liberty & Law (April 2011)

Article: Let's Compensate Bone Marrow Donors; Liberty & Law (April 2011)
Video: Let's Compensate Bone Marrow Donors; KCBS-Los Angeles (February 24, 2011)
Op-ed: Let's compensate bone marrow donors USA Today February 14, 2011
Video: Court Argument: Compensate Bone Marrow Donors to Save Lives; (February 10, 2011)
Video: NBC-TV: Money for Marrow; WRC-NBC (February 12, 2010)
Article: Saving Lives: IJ Challenges the Federal Ban on Compensating Bone Marrow Donors Liberty & Law (December 2009)
Video: IJ Attorney Jeff Rowes Discusses Health Care Challenge on MSNBC; MSNBC (November 20, 2009)
Video: Cancer Patients' Constitutional Challenge to the Allow Compensation for Marrow Donation; (November 20, 2009)

Video: Challenging the Ban on Compensating Bone Marrow Donors - Press Conference 10/28/09; (October 28, 2009)

Video: Challenging the Ban on Compensating Bone Marrow Donors - Press Conference 10/28/09 Pt. 2 Q&A; (October 28, 2009)

Article: Markets in Everything: Bone Marrow The Atlantic October 28, 2009

Video: Saving Lives: Challenging the Ban on Compensating Bone Marrow Donors; (October 27, 2009)

Article: Fighting the Federal Ban on Compensating Marrow Donors Reason Hit & Run October 28, 2009

Article: Using Economics to Solve Bone Marrow Transplant Crisis US News & World Report October 28, 2009
Op-ed: Compensation for marrow donors will save lives The Dallas Morning News October 27, 2009

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