The government rarely takes defeat well, especially in high-profile cases, and it sometimes tries to nullify an IJ victory with new regulations. That is what is happening now in the bone marrow case.
As Liberty & Law readers will recall, IJ defeated the Department of Justice two years ago when the 9th U.S. Circuit Court of Appeals held that the National Organ Transplant Act (NOTA) does not make it a crime to compensate most bone-marrow donors. This ruling—and the decision of the U.S. Solicitor General not to seek review in the U.S. Supreme Court—made it possible for us to carry out the objective of the case: set up a pilot program to determine whether strategic compensation could save lives by producing more and better donors. The premise here is that, like everything else in the world, paying for something helps you get more of it.
And marrow-donor compensation is no longer just a dream. The world’s leading experts in the use of incentives to increase blood donations—an international team of economists from Johns Hopkins, the University of Toronto and the University of Sydney—joined IJ to design a research program to determine exactly how incentives can be designed to maximize donations, and they were eager to implement it.
That is when the federal government announced a plan to undo IJ’s victory. Exploiting a quirk in NOTA, the Department of Health and Human Services (HHS) has proposed creating a federal regulation to ban compensating any marrow donors. HHS is doing this even though the federal court of appeals made it clear that the U.S. Congress never intended to do this.
The period of public comment in the fall generated an onslaught of criticism directed at HHS with the responses running about 99-1 in our favor. The comments ranged from the straightforward support of laypeople, arguing for the freedom of patients and donors to make decisions for themselves, to a letter from a group of esteemed economists that included Nobel Laureates.
IJ made it clear in our comment that we will defeat HHS in court, just as we defeated the DOJ, if the agency goes forward with this rule. In particular, we pointed out that HHS does not have the power to create regulations that conflict with the intent of Congress. That is the basic lesson of IJ’s major victory over the IRS that is also reported in this issue. In addition, HHS’s proposed rule will create an equal-protection problem because the law will treat compensated blood donors and compensated marrow donors differently (making the latter felons) even though blood and marrow donation fundamentally involve the same thing—donating renewable blood cells.
Our goal with this case was to save lives and advance liberty. If HHS unwisely tries to stop us, the story will be the same as with the initial suit against the Department of Justice: the good guys win in the end.
Jeff Rowes is an IJ senior attorney.