On June 25, the Institute for Justice’s landmark victory in the bone marrow compensation case became final when U.S. Attorney General Eric Holder declined to ask the U.S. Supreme Court to review last year’s decision in favor of our clients by the 9th U.S. Circuit Court of Appeals. Across the nation, doctors, patients and their supporters are now free to offer compensation to most donors of lifesaving bone marrow without fear of being prosecuted under the National Organ Transplant Act of 1984 (NOTA), which criminalizes organ sales.
This case began in October 2009 when IJ teamed up with cancer patients, the parents of children with deadly blood diseases, a renowned doctor, and the nonprofit MoreMarrowDonors.org to challenge NOTA’s ban on compensation for bone-marrow donors. The basic idea behind this legal challenge was that bone marrow is actually just immature blood cells and it is legal to compensate blood donors. Unlike the donation of solid organs such as kidneys, which do not grow back when removed, marrow cells constantly regenerate. There was simply no rational reason why a law designed to prevent a market in nonrenewable solid organs should apply to renewable marrow cells.
Like all of IJ’s cases, our clients were front and center, and their stories—and courage in the face of tremendous personal adversity—were inspiring. Single mom Doreen Flynn, our lead plaintiff, has three daughters with Fanconi anemia, a genetic disease that, without a marrow transplant, usually kills its victims before adulthood by destroying their ability to make healthy blood. Jordan Flynn, Doreen’s oldest, just underwent a bone marrow transplant in New York. Plaintiff Kumud Majumder, whose beloved 11-year-old son, Arya, died of leukemia months after we launched the case, never wavered and continues to be a tireless advocate for increasing the number of minority donors.
On December 1, 2011, the 9th Circuit rendered its decision. It ruled that the federal government could constitutionally prohibit compensation for marrow cells obtained using the traditional surgical method of drawing them directly from the hip bones using a large-gauge needle. It also ruled, however, that the statute did not prohibit compensating donors who use the most common method of donation: drawing marrow cells directly from the bloodstream. This modern technique did not exist in 1984 when Congress enacted NOTA. The court held, contrary to the Department of Justice’s position, that NOTA simply did not cover this new method.
The Attorney General was not prepared to accept this decision. He petitioned the full 9th Circuit to rehear the case in a special proceeding called en banc review. When the court denied that petition, the Attorney General’s only option was review in the U.S. Supreme Court. By choosing not to pursue review there, the Attorney General has accepted the 9th Circuit’s decision, which, because it is the only decision addressing this issue, created a uniform national rule.
Not only have we changed the law, we fundamentally altered the terms of the debate on a national scale, advancing the principle that liberty can be a powerful tool in the fight against deadly diseases and other healthcare problems. We secured feature articles and opinion pieces in The Wall Street Journal, The New York Times, The Washington Post, the Los Angeles Times and countless local print and television stories, as well as coverage in the medical and scientific press. NBC also recently featured our case on the Today show, NBC Nightly News with Brian Williams, and Rock Center. (If you have not seen that piece, we encourage you to do so: iam.ij.org/rockcenter-ij.) The case has also generated several scholarly articles and an academic conference at Drexel Law School.
With your help, the Institute for Justice will continue to change the world—and change lives—with innovative cases that sound the call of freedom in new ways.
Jeff Rowes is an IJ senior attorney.