IJ Protects Individuals from Arbitrary, Life-threatening Legislation

Jeff Rowes introducing IJ’s new case:

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.

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1 Comment

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One response to “IJ Protects Individuals from Arbitrary, Life-threatening Legislation

  1. I think you’re right that this is an error, but I don’t like the reasoning of there is no “non-arbitrary distinction” between different types of donative acts. What if, for example, the situation were reversed and we allowed compensation for bone marrow, but not for sperm donation. So, under the EP argument advanced, we strike that down also. But what if as a society, we’ve decided that we don’t want to encourage sperm donation (but we don’t want to actively criminalize it), so we merely say all sperm donations must be gratuitous, but we just won’t allow a financial incentive. That’s a “non-arbitrary distinction” but an EP ruling might not see it that way. In other words, I’m much more willing to keep bad laws on the books and force Congress to do something about it than say the courts should step in.

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