December 2006

Is There a Constitutional Right to Medical Self-Defense?

In the recent case of Abigail Alliance v. von Eschenbach, a divided panel of the United States Court of Appeals for the D.C. Circuit held that the due process clause required the Food and Drug Administration (FDA) to allow terminally ill patients the opportunity to use last-hope drugs that have not received final FDA approval.

In a forthcoming Harvard Law Review article, UCLA law professor Eugene Volokh offers a new doctrine of "medical self-defense" that justifies this ruling. Volokh suggests that the medical self-defense principle could be applied to the constitutionality of abortion rights and would provide constitutional grounds to strike down laws prohibiting financial compensation for organ donation.

Is medical self-defense a coherent legal concept that can justify constitutional intervention by courts in controversial cases regarding abortion or organ sales? Could it become a tool used by judges to substitute their policy preferences for those of legislators? Is Volokh correct that litigants have a feasible chance of the doctrine finding a home in the Roberts Supreme Court? Participants at this December 8, 2006, event discussed these and other questions.

Eugene Volokh
University of California, Los Angeles School of Law

There are two separate rights to abortion. The first is the pre-viability right to reproductive choice, which is of course deeply controversial. The second, much less controversial right is the right to protect the life of the mother when it is endangered, regardless of fetal viability. Even Justice William Rehnquist’s dissent in Roe v. Wade affirmed the existence of this second right, and, when polled, at least 85 percent of the country agrees that it should be protected. Similarly uncontroversial is the right to lethal self-defense against physical attacks, although whether that is a constitutional right as opposed to a traditionally recognized common-law right is not clear. Forty-four state constitutions explicitly enumerate it.

Suppose there are four women in danger, each needing to take some action to save her life. Alice needs an abortion, Katherine needs to kill a violent attacker, Ellen needs an experimental drug to potentially fight off a terminal illness, and Olivia needs an organ transplant because of organ failure. How can it be that Alice and Katherine may legally take these actions, but Ellen and Olivia are legally prohibited from taking the actions needed to save their lives?

There are several pertinent objections worth anticipating. Some say allowing unfettered access to experimental drugs would destroy the regulatory state’s ability to conduct experimental drug trials essential to ensuring safe medicine; others are concerned that allowing organ sales on an unregulated market would lead to unjustifiably inegalitarian outcomes for buyers or sellers, or commodify human bodies. My argument, though, does not suppose that government should be barred from implementing regulation so as to avoid these potential harms. Rather, it would require judges to apply strict scrutiny in determining whether, in burdening the right to medical self-defense, a narrower remedy to accomplish the same goals is available. With this test in mind, the status quo prohibitions are unjustifiable.

Jeffrey Rosen
George Washington University Law School

No form of conventional legal reasoning will lead to Volokh’s conclusion. Instead, he is forced to resort to form of constitutional abstract expressionism that conservatives rightly decry. The Supreme Court unanimously rejected this sort of minting of abstract rights in Washington v. Glucksberg (1997), and for Volokh to contend that he is not in fact offering a novel right, but only a new use of an old one, strains credulity. Volokh’s analogy to the abortion cases overlooks the extent to which those cases have been treated as sui generis, and the question of the health exception to abortion prohibitions is more complicated than he lets on in passing over it. He also undervalues the weight given to dignitary values in our legal tradition. As a policy matter, it is agreed that the “wisdom of repugnance” often cited as a reason to resist compensating donors in organ markets is a weak justification, but legally, the medical self-defense argument is too ambitious and overbroad.

Richard A. Epstein
University of Chicago Law School

Personal autonomy, which if respected directly implies a right to self-defense, is an ancient right long respected in our legal tradition. As a philosophic matter, and based on autonomy alone, Volokh’s point is serious and convincing. Given the gains of mutually voluntary trade, as a moral matter the state should be required to offer compelling reasons for limiting personal autonomy. Such compelling reasons exist when there are significant negative externalities created by the trade, or if there are defects in the voluntarism leading to the transaction. In the case of experimental drugs or compensating organ donors, neither of these concerns is compelling enough to support a ban, even if institutional oversight of some form--not necessarily governmental--is warranted. Shoehorning all of these important points into the context of self-defense does nothing to advance Volokh’s ultimate objectives, though, and is ultimately quite distracting. As a legal matter, the medical self-defense argument is unlikely to go far. There are actually fairly sound reasons for this. Even in the context of Lochner-era jurisprudence, which gave strong weight to the right to contract, the courts have recognized a strong police power for purposes of protecting the public’s health, safety, and general welfare. In these cases, there is a strong concern for health present, and so wading into this legal history hurts Volokh even as he advances powerful policy arguments.

AEI research assistant Philip Wallach prepared this summary.