Saturday, November 11, 2006

Eugene Volokh on "Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs "

Update: Lots more on this topic from Prof. Volokh over at the VC. 

Eugene Volokh (UCLA) has posted Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs at SSRN. Here is the abstract:

Alice is seven months pregnant, and the pregnancy threatens her life. She has a constitutional right to save her life by hiring a doctor to abort the viable fetus.

A person breaks into Katherine's home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Katherine may protect her life by killing the attacker, even if the attacker isn't morally culpable, for instance if he is insane, and even though recognizing this right may let some people use false claims of self-defense to get away with killing the innocent.

Ellen is terminally ill. Under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer some kinds of experimental drugs, even though federal law generally bars the use of such drugs.

Olivia is dying of kidney failure. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense may save Katherine's, and an experimental treatment may save Ellen's. But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney (just as Alice, Ellen, and Katherine would be in jeopardy if abortions, experimental treatments, and weapons could only be provided for free).

My claim is that all four cases involve the exercise of a person's presumptive right to self-defense - lethal self-defense in Katherine's case, and what I call medical self-defense in the others.

This is a constitutional right: Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman's life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. It can't be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus.

And the right is also supported by the long-recognized right to lethal
self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it's treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one's life against medical threats as well as against human or animal threats.

The right of medical self-defense thus offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one's life. And it makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people's lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.

Eugene has also posted about this paper over at the VC.

Rick Duncan

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