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Judging, properly

The 9th U.S. Circuit Court of Appeals is famously liberal and frequently reversed. Recently, however, a unanimous three-judge panel of this court did something right when it held that bone marrow donors can be compensated. In effect, it revised a law, the National Organ Transplant Act (NOTA) of 1984, because of a medical technique developed since then.

Was this "judicial activism" -- judges acting as legislators, imposing social policies they prefer? Or was it proper judicial engagement -- performance of the judicial duty to ensure that the law is applied in conformity with the actual facts of the case? Herewith an example of a court's conscientious application of law in light of a pertinent change -- a technological change -- in a medical sphere the law regulates.

NOTA made it a felony to sell human organs for transplants. This codified two moral judgments. One is that there is wisdom in an instinctive repugnance about the commodification of the human body, or at least of body parts that are not renewable. The other judgment is that a market for organs -- offering perhaps $50,000 for a kidney -- would usually, and troublingly, involve affluent people buying from low-income people whose consent is influenced by their neediness.

Unfortunately, NOTA classifies as an organ the bone marrow that is the source of life-saving stem cells that generate white and red blood cells, and platelets. When NOTA was written, extracting bone marrow involved a protracted, painful and risky semi-surgical procedure in which long needles were inserted into the hip bones of anesthetized donors.

Now, however, there is an essentially risk-free technique -- called apheresis -- for obtaining the stem cells not from hip bones but from the arms -- the blood streams -- of donors as they rest for six or so hours in a recliner.

Paying donors of blood plasma has long been legal, routine and effective in increasing donations of blood. It -- like sperm and eggs, donors of which can be compensated -- is quickly regenerated. As are the life-saving cells captured by apheresis.

One of the plaintiffs -- represented by limited-government litigators from the Institute for Justice -- who challenged NOTA's compensation ban is a California nonprofit organization that wants to encourage donations by offering $3,000 awards. Unfortunately, the 9th Circuit panel decided it did not need to reach the constitutional issue the plaintiffs raised, which was this: NOTA, in today's context of the noninvasive cell-procurement technique, apheresis, violates the constitutional guarantee of equal protection of the laws because it makes a distinction -- between compensation for donors of blood plasma and donors of bone marrow -- that no longer has a "rational basis."

The "rational basis test" makes courts excessively deferential to Congress regarding the reasons it gives for regulations it imposes. Courts applying this test usually approve any "conceivable" interest that Congress asserts unless it is so preposterous it makes the judges laugh until their ribs ache.

It would have been nice if the 9th Circuit panel had been more assertive -- if it had struck down NOTA's proscription of compensation for bone marrow donors on equal protection grounds. The panel said it did not need to reach this constitutional question. It simply ruled that Congress did not really ban compensation for bone marrow donors under the apheresis method -- which does not take actual bone marrow -- because this method did not exist in 1984.

Pushing back against the too-permissive rational basis test is a project for another day. For now, it suffices to say this: At this moment of careless rhetoric about "judicial activism," the 9th Circuit judges have judged, thereby providing a reminder that proper judicial engagement is different and admirable.