Thanks Eugene for letting me guest-blog this week about the Institute for Justice’s latest case: the first ever constitutional challenge to the National Organ Transplant Act (NOTA). [youtube]http://www.youtube.com/watch?v=GOO2kQZbqB0[/youtube]We’re asking the courts to enjoin the Attorney General from enforcing the provision of NOTA that makes it a serious crime to compensate bone marrow donors.

I’ll use today’s post to sketch our constitutional theory. Then, in the following days, discuss the history of NOTA, the standard of review called the “rational basis test,” the proper role of judges, and by Friday I’ll wrap things up with responses to comments.

Bone marrow transplantation is a lifesaving treatment for 70 deadly blood diseases, including cancers such as leukemia and lymphoma. Most people who need a transplant need one from a stranger, and tens of thousands have died because they lacked donors. Our clients want to increase the number of unrelated donors by having a charity offer them a $3,000 scholarship, a housing allowance, or gift to the donor’s favorite charity. Unfortunately, using scholarships to save lives is considered organ-selling under NOTA, a major federal crime.

We know what Congress intended when it enacted NOTA. 1,500 pages of detailed legislative history make it clear that Congress wanted to outlaw markets in kidneys and other solid organs. Congress didn’t like that organ surgery is invasive, that donated organs don’t grow back, and that organs would flow from poor to rich on an open market (I’ll discuss tomorrow why the relief we seek won’t give rise to markets).

Congress didn’t intend to criminalize compensation for renewable cells such as blood or sperm. In fact, the Conference Report the House and Senate jointly sent to President Reagan with the bill he signed said so.

Congress included bone marrow in the statute by mistake. A “bone marrow” transplant involves the collection of immature blood cells, not the removal of an organ or tissues. Most marrow cells are now collected using the same equipment and methods for blood donation. Donating marrow cells is safe and they quickly replenish themselves just like donated blood. Bone marrow wasn’t discussed in the legislative hearings and was inserted in the statute at the end of the drafting process, probably by a staffer (more on this tomorrow).

Here’s an analogy. Congress doesn’t like big pets attacking people. After 18 months of hearings, Congress outlaws selling pets over five pounds, and defines “pets” as “dogs, cats,” and, inexplicably, “pet rocks,” even though “pet rocks” were never mentioned during the hearings, are not actually household pets, and banning their sale doesn’t advance any interest Congress was trying to address by banning the sale of dogs and cats.

The inclusion of bone marrow in NOTA, like the inclusion of pet rocks in the hypothetical law, is not the result of Congress “making a hard call” or “drawing the line somewhere.” It was just sheer error, one that has undoubtedly cost tens of thousands of lives.

Of course, not every legislative mistake is unconstitutional. But a legislative mistake so profound as to render a statutory provision irrational is unconstitutional when it affects liberty. The Supreme Court has invalidated irrational statutes under the rational basis test at least a dozen times and there are literally hundreds of state and federal cases doing the same thing.

Here’s our constitutional theory in a nutshell. The provable absence of a rational basis for the bone marrow provision of NOTA means that the statute violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Next, throwing people in prison for compensating marrow-cell donors, but not throwing people in prison for compensating blood or sperm donors, violates equal protection because there is no non-arbitrary distinction between these acts. In all cases, the donor is being compensated for safely donating renewable cells. The flip side is also true. Just as it is arbitrary to treat similar things differently, it is also arbitrary to treat solid organs such as kidneys like bone marrow.

Let me quickly address two objections and let readers know that I’ll explore them in more detail this week. First, you might say, “who cares what Congress intended, judges get to make up justifications for laws under the rational basis test.” While it’s true that judges do make up hypothetical rational bases for laws in some cases, that approach only makes sense—to the extent it ever does—when no one knows why a law was enacted.

But we know why NOTA was passed. Why would we ever want a theory of constitutional interpretation that says in effect, “judges should make up reasons for the government to take away your liberty even when the legislature didn’t intend to do so”?

The second objection runs something like this, “if Congress made a mistake, then it’s up to Congress to fix it, not a judge.” But the legislature could fix every unconstitutional law. This isn’t an objection to the bone marrow case. It’s an objection to judicial review. I’ll have more to say later about what we at the Institute for Justice think is wrong with reflexive judicial minimalism.

Thanks again Eugene and I really look forward to discussing this exciting case with everyone.