Life, Death & Regulation

Among IJ’s litigation goals is to create a world in which all entrepreneurs—not just our clients—can realize their vision free from unreasonable government interference. An excellent example of this is our bone marrow case. Longtime readers of Liberty & Law will recall that in 2011 IJ won a landmark victory when the 9th U.S. Circuit Court of Appeals removed a federal prohibition on compensating most bone marrow donors.

That victory helped our clients, but it also inspired Doug Grant, a Navy veteran and entrepreneur who read about the victory. Doug and his business partners founded Hemeos, a private company that seeks to ramp up marrow donor recruitment by offering modest financial incentives for those who donate to patients dying of blood diseases.

Unfortunately, Doug and Hemeos cannot move forward because the U.S. Department of Health and Human Services (HHS) has spent the past three years considering—but not actually enacting—a rule that would attempt to nullify our victory. Under the proposed rule, it would once again be a crime to compensate any marrow donor. HHS has not, thus far, made any decision, and Hemeos cannot obtain the investment it needs to launch until it is clear that its business model will not be a felony.

HHS’s inaction is a lesson in how a faceless bureaucracy impedes entrepreneurial innovation and, in this case, lifesaving innovation. The proposed rule is illegal and unconstitutional, but as long as it is only a proposal, it cannot be challenged in court, even though it is a huge barrier to startups like Hemeos.

Recognizing that our victories are meaningless unless they are defended, IJ has taken on Hemeos as a client and called out HHS in the pages of The Wall Street Journal. In an op-ed published in August, we told the agency that it has two choices: reject the proposed rule and allow entities like Hemeos to save lives or adopt the rule and face an immediate legal challenge. We want HHS to understand that we will sue it and we will defeat it, just as we defeated the Department of Justice in our earlier case.

HHS has until December 2016 to make a decision. If it does nothing, the rule is deemed rejected and Hemeos can launch.

Hemeos is not the only innovator in this story. IJ Vice President for Communications John Kramer and his talented team created Everything, IJ’s first short film, to promote our bone marrow donor fight. Everything is a 16-minute drama inspired by Doreen Flynn, the lead client in our original bone marrow case. With Everything, IJ has taken its acclaimed storytelling skills to the Hollywood level, creating a story with strong production values and emotional impact.

IJ brought in Hollywood actors including Michel Gill, who played the president of the United States for two seasons on the popular Netflix series House of Cards. Our production team shadowed a professional director, cinematographer and sound engineer to improve our team’s technical skills for future productions.

Everything is now an award-winning short film that has garnered laurels at 15 film festivals and counting across the country. Our hope is not only that Everything helps the public understand the lifesaving potential of marrow donor compensation, but also that the film will catalyze change on Capitol Hill and within HHS.

The fight for liberty requires the defense of our victories and continuous innovation. Both of those endeavors are part of this next phase in our bone marrow litigation. Stay tuned.