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Onward to SCOTUS? Ninth Circuit Says No to Bone Marrow Re-Hearing

By Robyn Hagan Cain on March 30, 2012 | Last updated on March 21, 2019

The economy continues to struggle, and the unemployment rate remains around 8.3 percent. It seems like the Obama administration would welcome new and inventive ways to put extra cash in Americans' pockets. Instead, the Department of Justice (DOJ) wants the Ninth Circuit Court of Appeals to backtrack on a revenue stream that it approved in December.

Last year, the Ninth Circuit ruled that people can legally sell blood stem cells, a critical component of bone marrow. The Obama administration, concerned that compensation could influence donation decisions, asked the court to reconsider its position, reports the Los Angeles Times.

So what’s the big deal with bone marrow?

Bone marrow contains hematopoietic stem cells, which are the “seeds from which white blood cells, red blood cells, and platelets grow.” Bone marrow transplants can help sick patients produce new blood cells.

Until 20 years ago, bone marrow was only extracted through the painful “aspiration” process, which involves sticking a thick needle into a donor’s hip bone cavity. Donors must be hospitalized and anesthetized. If you have ever given bone marrow via aspiration, you know that it’s a painful and complicated process. Due to the risks in the aspiration process, the National Organ Transplant Act prohibits the sale of bone marrow.

(Sidebar: From personal experience we know that the procedure is quite painful. Additionally, we do not recommend giving a Garfield-as-a-doctor-with-a-syringe “Bottoms Up” balloon to anyone undergoing this unpleasant process.)

The aspiration process is a thing of the past. As the Ninth Circuit Court of Appeals discussed in Flynn v. Holder, blood stem cells can now be extracted through a process called “apheresis,” which poses fewer risks to donors and does not require sedatives or anesthesia.

The Flynn plaintiffs claim that the apheresis blood stem cell harvesting process is similar to blood, sperm, and egg harvesting, which are not included under the statutory or regulatory definitions of “human organ.” The Ninth Circuit agreed, and overturned the NOTA provision that criminalizes paying bone marrow donors, reports Medical Daily.

DOJ requested an en banc rehearing of the three-judge panel’s earlier decision; the petition was rejected on Tuesday after none of the 25 active judges on the Ninth Circuit Court of Appeals agreed to rehearing, according to the Los Angeles Times. The Solicitor General has 90 days from the rejection issue to petition the Supreme Court for review.

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