IJ’s Bone Marrow Case: Judical Engagement, Not Activism

Today I’d like to discuss how to apply principled judicial engagement to the bone marrow case (see previous posts here, here, and here), and I hope to explain this in a way that responds to some of the concerns in the comments that this case may lead to open-ended judicial activism.  Judicial engagement provides meaningful rational basis review (call it rational basis with “bite,” if you’d like) without opening the door to activism, amorphous “privacy”-type rights, or any other personal preferences of judges.

The constitutional interest at stake in the bone marrow case is rooted bothin the natural liberty the people retained in ratifying the Constitution and in the longstanding historical practices of Americans.  Until 1984, it had never been illegal to participate in safe, accepted, lifesaving medical treatment just because someone involved received compensation.  No one has to squint at penumbras cast by, or emanations from, the various enumerated rights to identify the right our clients are asserting in the bone marrow case.  Not only is there a substantial historical basis for this very specific constitutional interest (as opposed to nebulous “rights” that could lead to anything), its existence is consistent with the intuitions of most people about what legitimate constitutional interests look like.  As I said yesterday, most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs.

The next step is how to apply rational basis review to this right in a meaningful way that respects legitimate legislative prerogatives and does not allow judicial activism.  We can certainly begin with a presumption of constitutionality, as the rational basis test does.  The key is that this presumption cannot be irrebuttable or the functional equivalent (for example, requiring a plaintiff literally “to negative every conceivable basis” for a law).  After all, if the presumption of constitutionality is irrebutable, then there would be no judicial review under the rational basis test.  But there is meaningful review under the rational basis test.  The Supreme Court has found that at least a dozen laws lacked a rational basis (some are equal protection cases such as Quinn v. Millsap, 491 U.S. 95 (1989) or Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), while others involve different constitutional provisions with rational basis review such as the Commerce Clause in U.S. v. Lopez, 514 U.S. 549 (1996)) and other courts have done the same literally hundreds of times.  Some people (even Supreme Court Justices from time to time) may seem to imply that the rational basis test requires the government to win in every case, but that just isn’t borne out by the case law

Meaningful rational basis review requires judicial engagement and courts using this approach have protected liberty without being activist.  Judicial engagement involves looking at the government’s proffered justifications, looking at the facts (something courts do in other contexts all the time), and determining if those justifications are at all plausible (meaning genuinely credible and believable, and not just fanciful).  If they are, then the statute should be upheld.  But if, despite a strong benefit of the doubt, the challenged law does not in any sense plausibly advance a legitimate government interest, then the law should be invalidated.

IJ’s win in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) illustrates judicial engagement.  Tennessee violated the right of our clients to earn an honest living (an unenumerated right long recognized by the Supreme Court and protected by the Privileges or Immunities Clause of the Fourteenth Amendment) by restricting casket sales to licensed funeral directors.  The state proffered a host of purported health and safety interests this restriction might serve.  But the facts showed that the law didn’t plausibly advance any of those and all the law accomplished was protecting a cartel of funeral directors from competition.  Public power for purely private gain isn’t a legitimate government interest and that law was rightly invalidated.  Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), is similar in that the facts showed that the government’s pretextual prohibition of a permit for a group home for the mentally handicapped did not credibly advance any legitimate government interests the city proffered. 

Let’s apply judicial engagement to the bone marrow case.  We should begin with a strong presumption of constitutionality, but that should be tempered by a willingness to look at the facts and measure the government’s justifications against a standard of at least basic plausibility.  What are the legitimate government interests NOTA is trying to advance?  We know a few for sure.  Congress didn’t want living donors getting compensated for invasive organ surgery because doing so puts people at what Congress decided is too much risk.  Congress also didn’t like that organs don’t regenerate.  Finally, Congress didn’t want organ markets.

None of these interests is remotely advanced by criminalizing compensation for marrow cells.  Marrow cells are not an organ; they are renewable; and getting them is safe.  Our clients are not asking to create markets in their narrow as-applied challenge and, due to the peculiar features of marrow cells and the requirement that donor/patient matching is anonymous, there is no credible possibility that this case will create marrow markets.

How about hypothetical interests?  Is it plausible that Congress criminalized compensation for marrow because of problems with paid blood donors in the 1970s?  Not only was this never mentioned during the NOTA hearings, NOTA didn’t criminalize compensation for blood (which, if it was worried about problems with paid blood donors, would have been priority one).  Moreover, the text of the statute, along with the final conference report and many other pieces of legislative history, make it clear that the criminal provision of NOTA isn’t supposed to reach renewable cells like blood.  Or how about this hypothetical concern:  Congress could have included bone marrow in NOTA to protect people from the temptation of subjecting themselves to sheer unpleasantness for compensation?  I guess that’s “conceivable,” but it isn’t credible in light of the legislative history, the text of the statute, and common sense.

Let’s assume that the fact-record shows either that the bone marrow provision does not plausibly advance any of Congress’ actual interests.  Let’s also assume that there are not any hypothetical justifications for the law that could plausibly be imputed to Congress. 

So what would happen if, as we expect, the courts invalidate the application of NOTA’s criminal provision to our clients?  All such a case would say is that plaintiffs witha specific and demonstrably legitimate constitutional interest can vindicate their rights, not by hoping for an activist judge with a personal preference for them, but by rebutting under a demanding evidentiary standard the strong presumption of constitutionality with evidence clearly showing that the challenged law does not plausibly advance any legitimate government interest.

Judicial engagement of this sort is not judicial activism and a decision in our favor in this case would not lead to judges invoking sweeping and ill-defined ”rights” to rework the world according to their own personal preferences.

Meaningful judicial review is part of our systems of checks and balances and judicial engagement simply ensures that courts play their vital role in protecting liberty from arbitrary, irrational, and otherwise illegitimate deprivations.