Friday, December 2, 2011
First, I want to thank Katharine Van Tassel and the other moderators of the HealthLawProfs Blog for inviting me back as a guest blogger this month. As I did in May, I hope to provide you with some much-needed distractions from your dreary grading duties this month.
As mentioned on this blog on December 2, in Flynn v. Holder the 9th Circuit Court of Appeals, apparently in a case of first impression in any court, decided that persons who undergo peripheral blood stem cell apheresis to allow for harvesting of hematopoietic stem cells can be paid for their donations. According to the Court in Flynn, hematopoietic stem cells are “seeds from which white blood cells, red blood cells, and platelets grow.” Most of these cells remain in the bone marrow cavity, but some escape into the blood stream before they mature, and can be harvested by the same technique as is used to collect plasma or platelets from a blood donor. The process is more like a traditional blood donation than like the older method used to collect bone marrow for donation, which required sticking a needle into the cavities of an anesthetized donor’s hip bones. This is apparently as painful as it sounds, and involves much higher risks to the donor.
The plaintiffs challenged the federal statutory ban on payment for bone marrow donations as a violation of the Equal Protection Clause, claiming that allowing compensation for blood, sperm, and egg donations, while disallowing compensation for bone marrow donations, had no rational basis. The Court avoided reaching the constitutional issue by interpreting the National Organ Transplant Act’s definition of organs for which compensation is prohibited, which includes “bone marrow,” to exclude peripheral blood stem cells. Therefore, it reasoned, neither the statute itself, nor the Department of Health and Human Services (through regulation), prohibits payment to people who undergo peripheral blood stem cell apheresis to allow for harvesting of hematopoietic stem cells. The Court in effect said that using the term “bone marrow transplant” as a synonym for “peripheral blood stem cell apheresis” is an “anachronism that will soon fade away,” and the Court is just ahead of the curve in this process.
In my opinion, this is an eminently sensible decision which interprets the law in such a way as to harmonize it with advances in medical science (a refreshing change from the way that law and science have interacted in past years). However, as a health law teacher and scholar, I think the more interesting part of the opinion is where the Court holds that prohibiting payment for bone marrow donations by the older “aspiration” method (still used in 1/3 of bone marrow donations, according to the Court) does not violate the Equal Protection Clause. In this section, the Court identifies “two classes of rational basis […] policy concerns and philosophical concerns.” After listing the kinds of policy concerns that most of us are familiar with (concern about the rich inducing the poor to sell their organs, or potential donors extracting every last cent from a sick patient needing a transplant), the Court goes into a rather lengthy discussion of the kinds of philosophical reasons that Congress may have had for prohibiting compensation for organ donations. Citing extensively from Dr. Leon Kass’ book Life, Liberty and the Defense of Dignity: The Challenge for Bioethics, the Court explores what it calls an “instinctive revulsion” of “commodification” of removal of flesh from a human being for use by another. The Court even cites Kass’ statement that organ transplantation can be viewed as “simply a noble form of cannibalism.” The Court concedes that these philosophical reasons for the law prohibiting compensation are “in some respects vague, in some speculative, and in some arguably misplaced.” Yet it then goes on to hold that Congress’ distinctions between body parts that can be bought and body parts that cannot be bought, apparently based (at least in part) on these vague, speculative, and possibly misplaced philosophical arguments, have a “rational basis.” I’m a little surprised to see the Court cite what it calls “taboos” as a “rational basis” for distinctions in what can and cannot be commercialized. What’s next, a holding that a traditional “taboo” on homosexual conduct constitutes a rational basis for the Defense of Marriage Act? But that argument is probably for a different blog.
There is really some good imagery in this opinion, including Judge Kleinfeld’s description of “marrow” as “what some people suck out of beef bones.” I think it’s time for lunch.