Hearing in L.A.: Cancer Patients Seek to Remove Federal Criminal Ban On Compensating Bone Marrow Donors

John Kramer
John Kramer · March 10, 2010

Arlington, Va.—Cancer patients who face certain death if they cannot find a bone marrow donor match will have their day in court on Monday, March 15, seeking to stave off an attempt by the U.S. Attorney General to dismiss their lawsuit.  The cancer patients and their families are suing to seek permission to create a pilot program that would encourage more bone marrow donations by offering nominal compensation—such as a scholarship or housing allowance—but offering compensation for these renewable cells remains a felony under federal law, punishable by up to five years in prison.

A hearing on the case will take place Monday, March 15, 2010, at 1:30 p.m. in Courtroom 9 before Judge Valerie Baker Fairbank at the U.S. District Court for the Central District of California Los Angeles Division, 312 N. Spring St. in Los Angeles.  The court will consider the motion of the U.S. Attorney General Eric Holder to dismiss Flynn, et al. v. Holder.  Doreen Flynn, a single mother of five with three daughters who suffer from a deadly bone marrow disease, brought suit in October 2009 challenging the constitutionality of a federal law that makes it a serious crime to provide bone marrow donors with compensation.  Flynn, along with cancer patients and their families, a noted bone marrow doctor, and the California nonprofit MoreMarrowDonors.org sued the U.S. Attorney General to enjoin enforcement against them of the National Organ Transplant Act (NOTA) of 1984.

Every year, as many as 2,000 Americans die because they cannot find a matching bone marrow donor.  Minorities are hit especially hard both because they are underrepresented in the bone marrow donor pool and because the more complicated a person’s lineage is, the more difficult it makes it to find a donor match.  According to the Institute for Justice, which filed suit on behalf of the cancer patients and their families, 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.  The ban 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.

The Attorney General argued in his briefs that the case should be dismissed for two reasons.  First, he contends that federal agents and prosecutors have never threatened to imprison the plaintiffs if they implement their plan to use charitable funds to compensate the most needed bone marrow donors.  Because the plaintiffs are not under a direct threat of prosecution, the Attorney General argues it is premature for the court to hear their claims.  The Attorney General does not, however, say he will not prosecute them if they actually violate the law, but rather that the plaintiffs have not proved that he will.  But the federal courts, including the U.S. Supreme Court, have repeatedly made it clear that citizens—especially doctors—who believe the law violates their constitutional rights can bring a constitutional lawsuit without breaking the law and risking actual prosecution.

The second reason for dismissal, according to the Attorney General, is that the government had good reasons for banning compensation for bone marrow donors and, in any case, courts have essentially no authority to enforce constitutional rights when it comes to social and economic legislation—which amounts to virtually everything.  Reflecting the view that Congress may ban virtually anything for virtually any reason, the Attorney General offered justifications for the ban on compensation for bone marrow donors that are completely irrational.  For example, he stated that compensation could be banned to reduce the cost of transplants.  But, the patients counter:  banning private expenditures that are needed to make transplants happen in the first place—transplants that can ultimately save their lives—makes no sense, especially considering the alternative if these donations never take place.

“There are constitutional limits to government power and courts have the authority to enforce those limits,” said Jeff Rowes, a senior attorney with the Institute for Justice, which represents the plaintiffs in the case.  “The big danger to freedom is not judicial activism but the view promoted by the Attorney General, which amounts to judicial passivism in which judges merely rubber stamp whatever the government says.  Although legislatures are entitled to deference, the U.S. Supreme Court has made it clear that irrational and arbitrary limits on liberty are unconstitutional and courts should strike them down as such.  When you consider the government is essentially telling these cancer patients that their death is preferable to being able to compensate donors for renewable marrow cells that are safe to donate, that shows you how irrational and arbitrary this exercise of government power is.”

Every American should care about this case not only because the law irrationally interferes with a promising solution to the shortage of marrow donors, but also because the Attorney General’s view of the constitution sweeps across almost every aspect of individual freedom.  Nationwide, property rights and economic liberty are in jeopardy because legislators pass laws to benefit politically connected insiders and industry groups.  As long as the courts treat the defense of constitutional rights as afterthoughts, key decisions by American over their own way of life—from medical self-determination to homeownership to entrepreneurship—are handed over to government officials rather than left where they belong:  with the individuals themselves.

Rowes concluded, “According to the National Marrow Donor Program, each year about 5,000 bone marrow transplants take place between unrelated donors and recipients, but approximately 10,000 are needed, thereby demonstrating that the current system only meets half the donations needed.  Creating pilot programs that offer compensation may not entirely eliminate this demand, but it is reasonable to presume that it would help close the gap and save lives.”

Joining Doreen Flynn in the lawsuit is Dr. John Wagner, an internationally recognized expert in marrow cell transplantation at the University of Minnesota.  He has treated thousands of patients in need of marrow transplants, and he has been forced to watch hundreds of them die after they were unable to find a matching donor.  He believes it is time to try the most promising strategy for bringing in more donors—providing potential donors with an incentive to donate.  Among the other plaintiffs are Akiim DeShay, an African-American leukemia survivor from Irving, Texas; Mike Hamel, a Caucasian lymphoma patient in Colorado Springs, Colo.; Mark Hachey, who is of Caucasian and Filipino heritage from Puyallup, Wash.; Kumud Majumder and his family, who are of Indian descent and live in Saddle River, N.J., and MoreMarrowDonors.org, a California nonprofit corporation that educates the public about the need for more marrow donors.

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