When I first started reading this case, I thought: "Oh my God. You're kidding me. The Ninth Circuit's really going to do this?!"
I mean, I get it. Lots of libertarian conservatives have jumped on the "You should be able to sell your organs" bandwagon. It's consistent with at least one version of economic liberty and bodily integrity. Plus there's an undeniable need out there. People are dying. Every single day. Paying money for organs would presumably save these lives and benefit everyone. So why shouldn't we allow such sales?
But just because you may have a potentially persuasive policy argument is one thing. It doesn't mean you have a valid constitutional claim. And, in this lawsuit, the plaintiffs are bringing an equal protection challenge to a federal statute that bars compensation for bone marrow donations. That's rational basis review. Totally lax. Just gotta have a possible reason, and surely at least one (and probably more) exists. The district court dismissed the claim on a 12(b)(6) motion.
But then I start reading Judge Kleinfeld's opinion. And even though he's just "reciting" the facts, he's clearly reacting favorably to the plaintiffs' claim. Saying all this stuff about the procedure and the need that's exactly what you'd write if you were going to reverse the district court's dismissal.
Sure, he's got his strong libertarian bent, and I'm sure his clerks do as well. But surely he can't be ready to hold that there's an equal protection violation, right?! That'd be radical. Way radical. I'm not saying it'd be indisputably wrong. But wow. A freaky holding.
So after two or three pages, I can't wait any longer. Stop taunting me. I do what I almost never do. I flip to the end of the opinion to see how it comes out. REVERSED.
Holy hand grenades! Wow. This is going to be revolutionary. We're going to hold that there's potentially a constitutional right to get paid for your organs. Amazing.
Will the Supreme Court really let this stand? It seems crazy. But there are libertarians there too. And the liberals might realize, and be sympathetic with, the desperate need. This will be fascinating.
So then I go back and keep reading. And one of the things I learn is that bone marrow donation is not, at least according to Judge Kleinfeld, what I think it is. I think of it -- and probably most people think of it -- as an incredibly painful process where they stick a huge needle into your spine. That's indeed one way of doing it, and the traditional way.
But apparently there's a new way as well. That basically just involves giving blood. They spin the blood through a thingy and collect what you need.
Which I did not know. Moreover, as a practical matter, it makes a huge difference to me. Because even before I got to the "legal" part of the opinion, I had the following thought: "I'm going to do this." I should probably be willing to get a spinal tap to potentially save someone's life, but I'm flawed, so I don't. I also don't give regular blood nearly as much as I should, on the (again, flawed) theory that there's not actually a monster shortage and my blood's not essential.
But even I can't rationalize not giving blood when I may be the only (or nearly only) person who might be a match for someone. Having to sit in a chair for a couple hours isn't too much to ask to save a life. So Judge Kleinfeld's opinion (and the underlying lawsuit) at least did this: It convinced me that this is a procedure that I should do. Maybe others who read the opinion will have the same reaction. I certainly hope so.
But that's a practical and personal conclusion, not a legal one. Moreover, I'm willing to do this wholly absent any payment. That doesn't mean that I have a constitutional right to be paid for it. And that's plaintiffs' claim.
Judge Kleinfeld eventually gets to the merits. Starting with where I would have thought, before reading the opinion, he'd be forced to go. He initially concludes that, as to the "spinal tap" way of getting blood marrow, there's indeed a rational basis. That's painful. That's grabbing an "organ". Maybe one Congress might not think that's a big deal, and would allow you to be paid for it. But our Congress thought that mattered, and a rational argument can be made in that regard. Ergo it satisfies the Equal Protection Clause.
But you can also see where Judge Kleinfeld's going with this. He just told you that one way -- the traditional way -- of grabbing blood marrow is okay under the Equal Protection Clause. That's foreshadowing. As one is reading along, you can already see the argument. If it's true (as we must assume on a 12b6 motion) that it is possible to grab blood marrow just by taking blood, how's that any different than -- well -- giving blood, for which you can be paid. Or giving sperm, or an egg; for which, again, you can be "compensated." That's an equal protection argument with teeth. Or at least potential teeth; once again, the test here is very lax, and we are loathe to strike down (especially) Congressional statutes for lack of a rational basis.
But it nonetheless looks like Judge Kleinfeld's indeed going to so hold. Because remember that we know how the case is coming out. Reversed.
So I'm still enthralled with the decision, and while the process has been a little different than I first expected when I started reading the opinion, it's still a fascinating outcome.
But then Judge Kleinfeld throws a curve.
He does indeed reinstate the complaint. On the merits; not on some procedural technicality or the like. But at the end of the opinion, he decides not to reach the equal protection argument as applied to the blood-like manner of collection. Because while he's exclusively talked about the constitutional issue thus far, in the end, he interprets the federal statute to not cover bone marrow procedures if they just involve the new blood-collecting process. Ergo making resolution of the constitutional claim unnecessary, and also reaching the same result. Donors under that process can be paid. (And, to assist the plaintiffs, also awards 'em costs, which in this case likely means attorney's fees. So everyone gets paid.)
This statutory interpretation is surely defensible. Less controversial, I might add, than reaching this same result on constitutional grounds. And with the same practical consequences. You can indeed sell your bone marrow. But only if you can do it through the less painful means. Which is probably what you would prefer anyway.
That's a change in the law. You used to be not able to do this. Now you can. So feel free. Whether for money or not.
Judge Kleinfeld convinces me it's a good idea.
