I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the argument that banning payment is needed to keep poor providers from being improperly exploited. In earlier posts, I've discussed the risk of organ robbery, and the argument that banning payment is needed to keep rich patients from "jumping the queue." In future posts, I deal with the argument that organ payment bans are needed to avoid supposedly inherently improper "commodification" of the human body, and with some other arguments that have come up in the comments. As before, please recall that the footnotes are available here, so if you wonder where I got some of the data, you might check there first.

Note also that this argument is a small part of what must be at most a 30-page essay; I thus can't get into it in too much detail. At the same time, I may have room to add a few paragraphs here or there, so if you think there are important items that need adding, I'd love to hear about that.

Some argue that allowing organ sales would unduly pressure poor providers to put their health and their lives at risk. Yet the risk is modest. Giving a kidney carries a 0.03% risk of death or irreversible coma, a less than 2% risk of complications, and some unknown but not high increase in susceptibility to kidney disease. Giving part of a liver (livers regenerate, so giving part is possible) has been associated with a 0.25% incidence of provider death, plus some risk of nonfatal complications. Marrow donation is safe, though temporarily painful.

Such risks may justify mandatory counseling, waiting periods, and requirements that part of the compensation include insurance against medical complications. [Footnote: These regulations may slightly increase the cost of organs, but likely not enough to substantially burden recipients’ self-defense rights.] But they surely don’t justify the current ban, which applies even to compensation for cadaveric organs. [Footnote: Allowing compensation for cadaveric organs would actually help protect the health of living donors, because it would make living donations less necessary.] And in my view they are too small to justify even a ban limited to organs provided by the living. If someone thinks the prospect of making tens of thousands of dollars is worth a small health risk, the government’s interest in protecting him against being overtempted by the money shouldn’t suffice to trump the medical self-defense rights I’ve discussed.

Yet even if I’m wrong, recognizing that the organ sales ban limits patients’ rights should invalidate such a serious burden on their rights if the law can prevent the harm through lighter burdens. For instance, the law might exclude living providers who we think are unduly tempted by a $30,000 per-organ payment -- say, the very poor (perhaps they’re too desperate), young adults aged 18 to 24 (perhps they’re too present-centered), or poor parents of minor children (perhaps they may feel unduly pressured to risk their health for the sake of feeding their family). [Footnote: Even under the current system, there’s often strong family pressure on people to donate organs for relatives (even ones to whom the provider might not feel close). This isn’t identical to the pressure of an offered $30,000, but in many ways it might be stronger. Allowing compensation for organs will diminish this pressure, as more non-relative organs become available.] Better a small decrease in potential organ providers than the large decrease caused by today’s total compensation ban. And even these exclusions may leave enough providers to supply the medical self-defense needs of all Americans whose organs are failing.

True, some might balk at such limitations. Aren’t 21-year-olds adult enough that we shouldn’t treat them as second-class citizens who can’t make intelligent choices? Why should very poor people, or people who are trying to improve their children’s lives, be denied a money-making option that richer people have -- and be denied it precisely because the money is especially valuable to the poor and to parents?

But if such objections are right, they only show the problem with a paternalistic system that interferes with recipients’ self-defense rights and providers’ freedom of choice. The response to these objections should be to let all adult, competent would-be organ providers decide whether to sell their organs -- as they now have the right to decide whether to give the organs away -- not to bar everyone from doing so.

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the arguments that banning payment is needed to keep rich patients from "jumping the queue." I've already discussed the risk of organ robbery; in future posts, I deal with the arguments that banning payment is needed to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

As before, please recall that the footnotes are available here, so if you wonder where I got some of the data, you might check there first.

[C]onsider the concern that allowing payment for organs would let rich patients buy up all available organs, and leave poorer patients without the chance of a transplant. This result can similarly be avoided with regulation rather than prohibition.

Organ transplants are expensive. They are already available only to those who have health insurance, government-provided health care, or their own funds. All people, rich or poor, who are up for transplants thus already have some health care funders paying for their care.

And long-term care used while transplants are unavailable is even more expensive than transplants; for kidneys, transplants cost on average about $100,000 less than long-term dialysis. Health care funders would save money by paying up to $100,000 per kidney, again whether the patient is rich or poor. This means we can still maintain the current need-based system, but just have the health care funder for each person who’s next in line pay for the person’s new organ; the result will likely be savings for the funders, a greater pool of available organs, and no extra advantage for the rich.

Even if for some organ, transplants wouldn’t save money, and the health care funder would have to pay $30,000 per organ to compensate providers, this will hardly be a huge burden to absorb. Each year, about 15,000 Americans are added to the nonkidney transplant waiting lists; even if that number doubles once organs becomes more available, that would still only constitute .012% of the 250 million Americans with health insurance. If each organ cost $30,000, and this price wasn’t offset by any savings in alternative treatment costs, this would mean an increase in insurance costs of $4 per year per insured.

The “rich outbidding others” concern only arises if (1) the rich or their insurers pay so much that other health care funders can’t keep up, and (2) the other funders’ payments don’t suffice to make enough organs available for all patients. Even if we think this is likely -- if we think the rich would pay $200,000 per kidney, other health care funders wouldn’t pay more than $100,000, and this payment wouldn’t yield enough organs for everyone -- this only supports capping payments at the level that all funders would pay, likely the level at which they’ll still be saving money by getting an organ instead of paying for long-term dialysis.

Of course, even the lesser burden created by a payment cap may still be substantial, if the capped payment yields fewer organs and thus leaves some extra people on the waiting list. And this burden may be improper if we conclude that preventing inequality isn’t reason enough to interfere with medical self-defense. Where other matters -- private schooling, hiring a criminal lawyer, most forms of free speech, hiring of guards, spending money on highest-quality medical care -- are concerned, we generally don’t have the government impose such payment caps, despite egalitarian concerns.

Part of the reason for this is a general respect for property rights, notwithstanding the inequality they necessarily cause, and the view that substantive rights (to educate one’s children, speak, get an abortion, or hire a lawyer) include the right to spend money to exercise the right. And part is the fact that there’ll be much less provision of valuable services, such as education, legal assistance, or medical care, if those services must be provided subject to a price cap. Equality achieved by leveling everyone down to the same low protection is often, at least in the organ transplant context, the equality of the graveyard.

Nonetheless, perhaps I’m wrong: Perhaps the interest in keeping the rich from getting preferential access to organs is strong enough to trump the medical self-defense right, and would therefore justify barring rich patients from paying extra for such organs. But this equality interest can justify only a cap on payments to organ providers, not the much more burdensome total ban on such payments.

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the risk of organ robbery; in future posts, I deal with arguments that banning payment is needed to keep rich patients from "jumping the queue," to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

Throughout all this, remember: The constitutional, moral, and policy question isn't just whether some possible harm may flow from payment for organs, but rather whether avoiding the harm is reason enough to interfere with people's right to protect their own lives, and to support a system under which thousands of people die each year -- the best source I could find reported 8000 deaths -- for lack of an available organ.

The risk of organ robbery, for instance, cannot justify the ban on compensation for organs. Consider by analogy the risk that some will mask murder by falsely pleading self-defense. The risk might justify rules requiring that defendants prove self-defense by a preponderance of the evidence, though such rules burden people’s legitimate self-defense rights by raising the risk that legitimate defenders will be erroneously convicted. But the risk doesn’t justify flatly rejecting self-defense, even though such a rejection may more efficiently deter and punish murders; courts must still resolve self-defense claims case by case. Some sacrifice of the interest in preventing murder of people who are falsely said to be attackers must yield to the constitutional and moral interest in preventing murder (or rape or serious injury) of people who are truly being attacked.

The same preference for case-by-case identification of abuse rather than blanket prohibition of a form of self-defense should apply to the similar argument that paying for organs will prompt murder of people for their organs. There’s no need to flatly ban compensation, when regulation of organ transfer could do a very good job, for instance if the law required that (1) all organs be extracted by a well-established hospital, (2) a living organ provider, or the relatives of a deceased provider, approve the provision by signing a document in front of some official, (3) the provider’s blood sample be taken and securely stored so the organs’ DNA can be matched against the provider’s, and (4) all organ transfers be tracked, and done among well-established institutions. [Footnote: The law might also bar importation of organs from countries where these rules aren’t followed. Allowing a regulated organ market may also dry up the international black market in organs, which exists largely because dying people can’t buy organs legally.] And if some rare transplant-related murders still happen despite this, that isn’t reason enough to maintain a system that causes 8000 deaths a year through lack of available organs.

[Footnote: A body’s organs, put together, are unlikely to be worth more than $100,000. Only very rare American doctors would risks punishment for conspiracy to murder for $100,000, especially when organs are closely tracked. Heirs, to whom $100,000 might be worth more, might still kill a spouse, parent, or child to sell off the organs. But this is just a rare cousin of the existing temptation to kill a relative to collect insurance or inherit property, yet we don’t ban life insurance or inheritance, relying instead on the criminal law to deter the murder (especially because the greedy relatives know they’ll be among the first suspects).... ([T]he average American life insurance policyholder has about $150,000 in coverage); ... the median net worth of American families in which the family head is 45 or older is over $150,000.) Even a risk of providing an incentive to murder isn’t enough to justify interfering with families’ economic well-being—and neither should it be enough to interfere with organ recipients’ ability to protect their lives.

The risk that payment for organs will give some an incentive to commit suicide so as to leave money to their families, is likewise just a rare analog of the incentive provided by life insurance. Many life insurance policies cover suicide, especially when the suicide is more than two years after the policy is bought.]

As promised, I'm moving on to what is likely the most controversial part of my Medical Self-Defense article -- that bans on payment for organs violate patients' medical self-defense rights (which I argue are both constitutional rights and moral rights that legislatures ought to respect).

Here's the argument that the right is indeed implicated here, and that bans on payment for organs are therefore presumptively unconstitutional, at least unless the bans are the least burdensome means of avoiding very serious harms. In the next few days, I'll respond to some arguments that the bans are indeed necessary to avoid such harms.

To live, Olivia needs a kidney transplant. Though kidney dialysis is keeping her alive for now, each year on dialysis she faces a 6% risk of death: If Olivia is in her twenties, her expected lifespan on dialysis is 30 years less than her expected lifespan with a transplant.

But Olivia is one of the 67,000 people on the American kidney transplant waiting lists. (Twenty five thousand more wait for other organs.) The median wait for adult recipients added to the list in 2001-02 was over four years. Each year, only 6500 living Americans donate kidneys, and only 45% of the 26,000 usable cadaveric kidneys -- kidneys gathered from the bodies of people who die from accidents or other causes that leave their organs young and healthy -- are donated.

Nor should this shortage be surprising: Since 1984, “receiv[ing] or . . . transfer[ing] any human organ for valuable consideration for use in human transplantation” has been a federal felony. Price controls diminish supply. Setting the price at zero diminishes it dramatically.

Lack of compensation naturally makes living donors less likely to incur the pain, modest risk, lost time, and lost wages that accompany extraction of an organ. The relatives of the recently dead have less to lose tangibly from authorizing extraction of the decedent’s organs; but even they may be put off by what strikes many as a macabre idea, may refuse consent if they’re not positive what the decedent wanted, or may not want to discuss the matter in their time of grief. [Footnote: Similarly, people who don’t sign a donor card may be turned off for emotional reasons, though far less intense ones. The prospect of essentially getting a free modest life insurance policy for one’s relatives may be enough to help overcome such emotional objections.] The prospect of (say) $100,000 [for all their organs, to be used] for their children’s college education[,] may lead them to overcome these barriers. [Footnote: Many people, of course, wouldn’t sell a kidney during their lives, even if you offered them $100,000. But that’s not a problem for an organ market; even if only 0.01% of adult Americans are willing to sell an organ each year, that would still bring an extra 25,000 organs into the system every year -- likely enough to clear out the waiting list, when added to the increased number of available cadaveric organs.]

Some people do donate organs. Though living donations are almost always for relatives, friends, or other known recipients, a few living donors (1.5% of the total) and many next-of-kin of the recently dead donate to anonymous strangers.

Yet kindness to strangers is generally not as strong a motivation as the desire for financial reward, or a combined desire to help strangers and at the same time put money aside for your children’s education. [Footnote: The concern about the children’s education may be especially strong if the organ provision is made possible by the death of a parent who was the children’s main source of support, and the spouse is now facing raising the children alone.] We pay hospitals and surgeons well for their parts in the transplant. If we didn’t, there’d likely not be nearly enough transplant services provided, though many hospitals are charitable institutions and many doctors routinely donate their time to free medical care. Why should we expect organ suppliers to provide enough organs based solely on charity to strangers? We’d likely get far better results if we offered organ providers compensation -- or, more precisely, offered them the choice of keeping the compensation, forgoing it, donating it to a familiar cause of their choice (for instance, their church) rather than to a total stranger, or spending it on their children.

Olivia is little different from Alice. To defend their lives, both need medical assistance. If the government may not interfere with Alice’s getting this assistance, even in the service of protecting the life of a viable fetus, it shouldn’t be allowed to substantially restrict Olivia’s ability to get such assistance -- at least absent evidence that Olivia’s actions would cause grave harm that can’t be averted any other way. Limits on Sales as Substantial Burdens: So though the organ sales ban isn’t a total transplant ban, it is a substantial obstacle to people’s medical self-defense. It substantially reduces the number of available organs, and substantially increases the chance that the recipient will die before a matching organ is found.

Where most other constitutional rights are concerned, bans on using money (either from your bank account or from an insurance policy that you’ve bought) to help exercise a right are obviously substantial burdens on the right. Say a legislature let people privately educate their children, engage lawyers in their criminal cases, or get abortions -- but only if these services were provided free. Of course this payment ban would constitute a substantial burden on the underlying constitutional right: It would dramatically reduce the number of private schools, criminal defense lawyers, and abortion providers, and some people would thus be unable to exercise the right. Restrictions on paying money to speak have likewise been repeatedly struck down, because they burden speakers’ ability to effectively convey their message. And if a ban on paying for one scarce input into the exercise of a constitutional right (teachers’, lawyers’, doctors’, or authors’ time, or space for a political ad in a newspaper) substantially burdens the right, then a ban on another scarce input (providers’ organs) does as well.

A few such restrictions on paying money to exercise a right may be constitutional because there are very strong government interests justifying them. That was the Court’s reason for upholding some modest restraints on spending money related to candidate elections.

A few other restrictions may be constitutional when the right is aimed at promoting goals that are served only by noncommercial exercise of the right: Consider the Compulsory Process Clause right to subpoena witnesses, the Due Process Clause right to call willing witnesses in criminal cases, and the Lawrence v. Texas sexual autonomy right. [Footnote: Lawrence does protect purely casual noncommercial sex, but I think it does so because the law can’t distinguish such sex from emotionally significant sex.] I assume the law could ban paying witnesses or paying for sex on the grounds that such conduct tends not to advance the constitutional purpose of the rights -- procuring accurate testimony and helping develop emotional relationships. [Footnote: If I’m mistaken on this, then presumably the reason for upholding the bans on payment would be that there’s a very strong government interest justifying the ban.] Paid-for testimony and paid-for sex aren’t constitutionally valuable in the way that the unpaid conduct is.

But paid-for books, educations, legal counsel, abortions, and organs are constitutionally valuable, because they do serve the purposes of the underlying rights -- and more reliably than if these goods or services could only be provided for free. “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Relying solely on the benevolence of lawyers, doctors, teachers, or organ providers likewise offers little protection for our rights. So long as a ban on compensating organ providers keeps many patients from getting the organs they need to live, it constitutes a substantial burden on the right to medical self-defense. Limits on the Right: The self-defense right, like other rights, isn’t absolute. Modest regulations (informed consent requirements, waiting periods, and the like) that don’t substantially interfere with the right should be permissible. The right may well be limited to situations where self-defense is necessary to avoid threat of death, or perhaps of very serious injury. The right is inherently limited to cases where it doesn’t directly infringe the rights of others who are not threatening the person’s life.

Moreover, the self-defense right may be limitable in other ways, if the harm from allowing it is too great; in the lethal self-defense context, for instance, this is the foundation for many pro-gun-control arguments. [Footnote: I’m skeptical of these arguments on empirical grounds, and I think it should take a great deal of harm to justify interfering with people’s right to defend themselves, but I agree that in principle the right to possess the tools for lethal self-defense may be limitable. To give an example, felons may need to defend themselves at least as much as nonfelons; yet restrictions on felons’ (especially violent felons’) gun ownership are constitutional and morally permissible.] Likewise, the D.C. Circuit in Abigail Alliance remanded the case for the district court to hear arguments about whether the FDA rules were narrowly tailored to some compelling government interest.

Yet, as the abortion-as-self-defense and lethal self-defense examples show, self-defense ought only be limitable for the most pressing reasons. Protecting a viable fetus isn’t enough. Protecting the life of an animal isn’t enough. Protecting the life of an attacker, even one who’s not morally culpable (for instance, because he’s insane) isn’t enough. These reasons can’t justify denying people the right to protect their own lives. And even if there is a strong enough reason for restricting self-defense rights, the restriction ought to be narrowly limited so as to minimize the burden on the rights.

So far, the excerpts from my Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs article have focused on the established constitutional right to abortion-as-self-defense, and the established common-law, statutory, and possibly constitutional right to lethal self-defense. Now I turn to the places where my medical self-defense arguments would make a difference; I will soon turn to the most controversial item — the impropriety and unconstitutionality of the ban on compensation for organ transplants — but for now I start with a right of the terminally ill to use experimental medical treatments:

Let us turn to Ellen, who is terminally ill. Existing therapies, doctors say, are useless. An experimental drug offers some hope, and FDA Phase I tests suggest that it’s safe; but it is banned by federal drug law, because it has not yet been shown effective.

Ellen’s right to medical self-defense should exempt her — and the doctors and pharmaceutical companies whose assistance she needs — from the ban. Alice may kill her viable fetus to protect her life, and may enlist her doctor’s help to do so. Katherine may kill her attackers, whether guilty humans, morally innocent (for instance, insane or mistaken) humans, or morally innocent animals. Ellen should have at least an equal right to ingest potentially life-saving medicines, without threatening anyone else’s life.

This is not a general autonomy argument, premised on the theory that all people should be free to ingest whatever they choose into their body. Rather, it’s an argument specifically focused on the right to self-defense, a right supported both by the Court’s caselaw (Roe and Casey) and by the longstanding acceptance of the right to lethal self-defense.

What justification can the government have for limiting Ellen’s rights? Ellen’s use of experimental drugs might jeopardize what little time she has, and cost her money that may prove wasted. Yet if people may protect their lives even by taking a viable fetus’s life or an attacker’s life, they should be as free to risk their own short remaining spans in trying to lengthen those spans. [Footnote: Compare cases such as In re Guardianship of Browning, 568 So.2d 4, 14 (Fla. 1990), which conclude that where a patient has an incurable disease, the state’s interest in preserving his life isn’t compelling enough to trump the patient’s right to refuse treatment (a right protected by Cruzan v. Director, 497 U.S. 261, 278 (1990)). If the state may not use the interest in preserving life to trump the patient’s right to end his life through refusing treatment, it should be even less able to use the interest in preserving life to trump the patient’s right to try to prolong his life through experimental treatment.] Paternalistic government interests suffice where no constitutional rights are involved, but they shouldn’t justify blocking a person’s right to protect her own life.

Terminally ill patients’ right to use experimental drugs might also interfere with randomized clinical drug studies. It’s possible that so many patients will insist on getting a not fully tested but promising drug that researchers will be unable to scientifically test the drug’s effectiveness. If people can just buy the drug, they may not want to enroll in a study in which they might get a placebo instead of the drug.

Yet even if the need-to-test argument justifies some limits on the use of experimental drugs even by the terminally ill, it doesn’t mean that people lack medical self-defense rights — it merely means that these rights may sometimes be trumped by a strong enough justification. Moreover, the argument justifies limiting medical self-defense only when such limits are really necessary for conducting clinical studies, and when no other alternatives will do. For instance, if the studies require 200 patients, and there are 10,000 who seek the experimental therapy, there’s little reason to constrain the self-defense rights of all 10,000. Likewise, if the drug is being studied now only on people who suffer from a particular kind or stage of a disease, it shouldn’t be legally barred to those who would fall outside those studies in any event. If we must strip people of self-defense rights to save many others’ lives in the future, this tragic constraint should be imposed on as few people as possible and to as small an extent as possible.

There is one difference between Alice and Ellen: Ellen’s experimental therapy is much less likely to be successful than Alice’s therapeutic abortion would be. Yet there’s no reason why self-defense rights should be limited to sure self-defense. Lethal self-defense is allowed even though it is often not completely reliable — even if Katherine tries to use lethal force, she may be overcome by the home invader. Similarly, imagine a woman who is sure to die without an abortion, but who may still die even with one. Her abortion-as-self-defense right should remain even if the therapeutic abortion will increase the chance of survival only by a fairly small (or uncertain) amount. [Footnote: At most, some people might reach a different result if the fetus is likely to survive the woman’s death: As between a 100% chance of maternal survival and fetal death and a 100% chance of maternal death and fetal survival, they would choose allowing the woman to abort; but as between a 10% chance of maternal survival coupled with sure fetal death and a 100% chance of fetal survival coupled with sure maternal death, they would choose protecting the fetus. Yet even they would justify this conclusion by saying the woman’s right to self-defense is trumped by the need to protect a viable fetus’s life — not by claiming that the woman’s right vanishes because her defensive tactics aren’t certain to succeed.]

The D.C. Circuit’s decision in Abigail Alliance [which reached the same result I argue, but which was a 2-1 decision that might yet be overturned on en banc review or by the Supreme Court] rested in part on the traditionally recognized right to defend one’s own life; yet it didn’t cite the close analogy to abortion-as-self-defense, or discuss the state constitutional protections for the right to self-defense. These analogies, I think, substantially add to the case the Abigail Alliance panel made.

Finally, some might respond that courts generally shouldn’t recognize unenumerated constitutional rights. The right to abortion — even abortion-as-self-defense — ought not have been constitutionalized, they’d argue, and ought not be broadened by analogy. Lethal self-defense ought to be seen as a legislatively trumpable common-law or statutory right, not a constitutional right. Let’s stick with judicial minimalism on unenumerated rights, and leave matters to the democratic process.

This is a plausible argument, but not one the Supreme Court has adopted. The Court has continued to endorse abortion rights and family rights. It has recognized rights to sexual autonomy and to refuse unwanted medical treatment. There’s little profit in reprising the whole unenumerated rights/Ninth Amendment/substantive due process debate here. My point is simply that the Court’s process for recognizing unenumerated rights by analogy remains active, and there is a strong case for using this process to recognize a right to medical self-defense.

And regardless of whether medical self-defense should be recognized as a constitutional right, the arguments given above should offer a strong moral case for the legislature’s respecting such a right. American legal traditions properly recognize people’s rights to protect their lives, even when that requires killing. The law ought to do the same when a dying person simply seeks an opportunity to risk slightly shortening her life in order to have the chance of substantially lengthening it.

I'd love to hear people's thoughts on this. One request, though: I realize — as the last three paragraphs make clear — that there's a hot and eminently legitimate debate about whether courts should recognize unenumerated constitutional rights; and the previous posts in this post chain have drawn many comments focused on that very debate. I'd like to ask that we set aside that general issue for the comments to this post and the coming ones, simply because it has already been dealt with in such detail (and already with some repetition) in the comments. Naturally, the specific issue of whether this unenumerated right should be recognized (among many other issues) remains entirely fair game.

to my Democratic friends on winning the House and, as seems likely, the Senate, and best wishes to the Democratic leadership in their legislative tasks. If they embarrass themselves like the Republicans often have in the past years, the tide may easily turn against them; but if they succeed, then voters in 2008 will quite properly reward them.

NPR has been running a series on "some of the language that's become part of our everyday vocabulary since September 11, terms such as war on terror and Islamic Fascism." The first item was on "the various meanings of the word jihad." So this is a whole story on language, and in particular on one word, "jihad."

One sentence, though, struck me:

Ten years ago, few people in America had heard the word jihad. It's so common now it has its own entry in the Oxford English Dictionary.

It turns out, though, that the word "jihad" appears even in the First Edition of the Oxford English Dictionary; the volume containing the word "jihad" was published in 1901. What's more, the First Edition gives both the literal meaning, "A religious war of Muslims against unbelievers in Islam, inculcated as a duty by the Koran and traditions," with attestations from 1869, 1875, and 1880, and a figurative meaning, "A war or crusade for or against some doctrine, opinion, or principle; war to the death," with attestations from 1880 and 1886.

Now mistakes happen, and this one isn't terribly material to the story's broader points. I strongly suspect that the term jihad has indeed become more common over the last decade.

But the mistake reminded me in mind of a claim that I read in Far from the Madding Gerund, the wonderful collection of Language Log blog posts: Media stories routinely make elementary mistakes about language matters, mistakes that could easily have been remedied with just a quick dictionary check. (Here's one post in which the Language Loggers make this point, though they've also provided many other examples.) Of course media mistakes happen in lots of other contexts, and the Language Log people find them especially often as to linguistics for obvious reasons. But it is striking that the errors are routinely made even when adequate checking is so straightforward.

Pre-school political advertising. Persuaded me!

Do we have a constitutional right to use deadly force in defense of life (or defense against rape, kidnapping, serious bodily injury, and perhaps more)? Oddly enough, the matter hasn't been settled, and has been little studied by scholars. Fordham lawprof Nicholas Johnson has a forthcoming article on the subject, but unfortunately I couldn't find a draft of it on the Web; George Mason lawprof Nelson Lund has a response. There's a smattering of other material on it, but quite little. Here's my short section on the subject; for footnotes, see here:

Lethal self-defense is so broadly accepted that courts have rarely had occasion to confront grave restrictions on it, and thus haven’t squarely decided its constitutional status. Some lower court opinions have said that there is such a right, and a recent four-Justice plurality opinion -- authored by Justice Scalia, usually no friend of unenumerated constitutional rights -- suggested the same. And the Court’s unenumerated rights caselaw provides a strong case for recognizing a presumptive federal constitutional right to self-defense.

The right to self-defense is important to people’s lives, and firmly rooted in longstanding American tradition. Framing-era sources refer to it as a natural right. Blackstone wrote of the right to prevent “any forcible and atrocious crime,” even with lethal force, as “justifiable by the law of nature”; St. George Tucker, one of the leading American commentators of the first half of the nineteenth century, described “[t]he right of self defence” as “the first law of nature.”

The right has been as broadly accepted as the rights to bear and raise children and to live with one’s family members, and more broadly accepted than the right to an abortion or even the right to use contraceptives. Even if due process or the Ninth Amendment is interpreted as protecting only those rights that were recognized as important common-law rights in 1791 or 1868, self-defense would qualify. The right has never been absolute, but in this respect it is like most constitutional rights, enumerated or unenumerated.

The right is also secured by forty-four state constitutions. Twenty-one of these, dating back to the 1776 Pennsylvania Bill of Rights, expressly secure the right to “defend[] life.” Forty, dating from 1776 to 1998, secure a right to keep and bear arms in defense of self, which presupposes at least the traditional core of lethal self-defense.

Two court of appeals decisions have expressly rejected a constitutional right to lethal self-defense, but with little analysis, and in the course of upholding two rules that may well be constitutional even if the constitutional right is recognized: prison disciplinary rules categorically rejecting prisoner self-defense claims, and the rare state rules requiring defendants to prove self-defense by a preponderance of the evidence. Even if prisoners ought to lack a constitutional right to self-defense, this says little about the right outside prison -- prisoners are subject to far greater constraints on most of their constitutional rights than are nonprisoners. And even if defendants may be required to prove self-defense, one can have a constitutional right and yet bear the burden of proving that the conditions for its exercise are satisfied. When the Supreme Court upheld laws placing the burden of proving self-defense on the defendant, it did so without opining on whether there’s a constitutional right to self-defense.

Finally, if the Court concludes that the Second Amendment secures an individual right aimed partly at self-defense, thus endorsing the view expressed by Congress and by the White House Office of Legal Counsel, though only by a minority of federal circuit judges, then some right to self-defense might be inherently protected through the Second Amendment. But, as I argue above, a right to self-defense (though potentially limitable by gun control laws) should be recognized even without reliance on the Second Amendment.

More from my Medical Self-Defense paper; see the original for footnotes, should you want it. Thanks also for your comments: Among other things, they've persuaded me that I need to explain in more detail why I use the self-defense defense as an analogy instead of the necessity defense -- I think I have a good justification for it, but it sounds like I'll need to make it explicitly, and I'll do that on-blog and likely in the article as well. In the meantime, a brief discussion of imminence, to be followed shortly by a discussion of the constitutional law and self-defense:

Lethal self-defense is generally allowed only in response to imminent threats of harm, usually measured in minutes; medical self-defense would often be used to prevent a death that’s likely in months. But for medical self-defense, it makes sense to treat imminence as simply requiring a present medical condition that seriously threatens life in the relatively near future -- that is to say, as an application of a necessity requirement -- not as requiring that death be likely within the hour.

The imminence requirement in lethal self-defense is aimed at serving several functions. First, imminence is a rough proxy for necessity of lethal response: Lack of imminence is correlated with the presence of alternatives (escape, calling the police, and the like) and the possibility that the threatener’s anger will cool. Second, the imminence requirement diminishes erroneous claims of necessity, since judgments about long-term threats tend to be less accurate than judgments about short-term threats. Third, the risk of false claims of self-defense would be especially high if “he had told me some time before that he wanted to kill me” were justification enough for killing. Fourth, insisting on tools that help show necessity and help weed out false claims is especially important because unnecessary self-defense causes unnecessary death.

For medical self-defense, all these functions would best be served by seeing imminence as simply requiring a present medical threat. The best proxies for necessity are the present medical threat (your kidneys are actually sick) and the lack of a satisfactory permitted therapy. You can’t flee kidney disease that can be cured only through a transplant, or call the police to protect you. Present medical threats of future harm are generally more reliably diagnosable than human threats. There is little risk of insincere claims of danger, especially since the diagnosis is made by a trained and objective medical expert. And even if an error happens, it will likely endanger others far less than erroneous lethal self-defense would.

These reasons help explain why the law doesn’t distinguish a woman who gets a post-viability abortion to protect her life against immediate danger (her pregnancy was threatening likely immediate death) from a woman who gets a post-viability abortion to protect her life against real but not immediate danger (her pregnancy was threatening likely death in a month). So long as the dangerous medical condition currently exists, the woman may defend herself against the risk right away, especially since waiting may increase the danger. The same should apply to other forms of medical self-defense.

I build my Medical Self-Defense argument partly on the right to abortion-as-self-defense, but partly on the analogy to lethal self-defense.

The broad acceptance of the abortion-as-self-defense right should be no surprise. Protecting one’s life has long justified violating many laws, whether against homicide, battery, discharging firearms, cruelty to animals, killing endangered species, or destroying another’s property. If a person or animal is threatening you with death, serious physical injury, rape, or kidnapping, you may defend yourself through otherwise unlawful violence. Likewise with therapeutic abortions: As a 1939 English case held, in reading a “life of the mother” exception into an abortion ban that didn’t include such an exception, “as in the case of homicide, so also in the case where an unborn child is killed, there may be justification [meaning a self-defense justification] for the act.”

The analogy between lethal self-defense and medical self-defense is necessarily not as close as the analogy between one form of medical self-defense (via abortion) and another. But, I’ll argue, it’s close enough. My hope is that people who feel strongly about the right to lethal self-defense (as do I), but who are skeptical of what they see as newly minted rights such as medical rights justified on pure autonomy grounds, will come to agree that the moral case for medical self-defense is at least as strong as the case for lethal self-defense. The Legal Status of Lethal Self-Defense -- Generally: American law has consistently recognized people’s rights to kill attackers to protect themselves against death or serious physical injury, and generally against rape or kidnapping as well. This right covers even killing those who caused the danger through no moral fault (or minimal moral fault) of their own. You may kill those who are threatening your life negligently, or through an unfortunate nonnegligent accident. You may kill attackers who are insane and thus not morally culpable. You may use self-defense against animals, even when such actions would otherwise violate endangered species law, animal cruelty laws, or laws barring destruction of others’ property.

Moreover, the legality of lethal self-defense endangers even those who aren’t attacking anyone. Say I cold-bloodedly want to murder you. If the self-defense defense didn’t exist, I would know that if physical evidence linked me to the attack, I would likely be convicted.

But allowing self-defense may help me escape: “He threatened me, and I thought he was reaching for a gun,” I would falsely say, and the only other witness -- you, the victim whom I am painting as the attacker -- won’t be there to contradict me. Some jurors might be persuaded beyond a reasonable doubt that I’m lying, but some might not, especially if I’m a sympathetic character (say, a police officer) and the person I killed is not. Lethal self-defense is thus a right that’s protected even though it can sometimes lead to serious harm, including harm to innocent people. And if I may kill someone to protect my life, why shouldn’t I be presumptively free to protect my life using medical procedures that don’t involve killing, of the guilty or of the innocent? Limits on Lethal Self-Defense: The right to lethal self-defense is in some ways limited, as are other rights, and as the right to medical self-defense would be as well. First, the right is uniformly accepted only when self-defense is necessary to defend one’s life, or at least prevent serious harm to oneself: You generally can’t kill to prevent a bruise or a petty theft. Similarly, I am arguing for medical self-defense against deadly or at least radically debilitating threats (such as paralysis or dementia), not the common cold.

Second, the right to lethal self-defense, like other rights, doesn’t in my view include the right to injure the life, liberty, and property rights of people who aren’t threatening your life. If I’m starving to death on a lifeboat, I have no right to kill and eat my fellow passengers. If a criminal forces me to kill someone, my actions won’t be legally justified. Even taking another’s property to save my life isn’t, I think, part of my self-defense rights, though the law may still decline to punish some of these actions due to sympathy towards my predicament.

This limitation, though, doesn’t affect the standard medical self-defense scenarios I discuss. Ellen doesn’t want to steal the drugs from the pharmaceutical company. Olivia doesn’t want to kidnap someone to cut out his organs. Even Alice is killing the fetus who threatens her life, albeit threatens it with no moral culpability.

Finally, some American jurisdictions burden people’s ability to practice lethal self-defense by constraining their access to the tools that are often needed for effective self-defense: guns. One jurisdiction (D.C.) generally bars people from possessing any loaded firearms. A dozen states bar most people from carrying concealed loaded firearms in public places. Felons, drug addicts, the insane, and children are generally barred from possessing guns altogether.

Yet even these laws do not cast doubt on the existence of lethal self-defense rights. To begin with, in most states, the law endorses most people’s ability to defend themselves even using guns, despite the substantial harm that guns cause to innocents. Most high-profile firearms restrictions, such as bans on so-called “assault weapons,” don’t substantially burden people’s ability to have guns for self-defense, since they leave people free to use many other guns. All jurisdictions but D.C. let law-abiding adults possess loaded shotguns for home defense. Thirty-eight states let law-abiding adults carry guns for self-defense in most places outside the home either without a license or with a license that the police are generally required to issue.

Even when someone is generally barred from possessing firearms, self-defense against an imminent threat is usually a valid defense. In some states that don’t automatically allow law-abiding adults firearms carry licenses, even nonimminent danger -- so long as it’s well above what the average person faces -- is a factor in favor of granting the license, or of rendering the license requirement inapplicable. In other states, the concealed weapons restrictions are waived for people who show sufficient threat from an identifiable potential attacker.

Moreover, even when gun laws do substantially burden people’s ability to use lethal self-defense, the reason given is generally that gun bans are necessary to protect innocent lives, because any lesser regulations wouldn’t do the job. This fits well with the lethal self-defense right I describe -- a right that (a) is generally accepted, (b) presumptively may not be substantially burdened, but (c) may be substantially burdened when the danger to others’ lives is seen as being so grave as to overcome the right’s value in protecting lives.

One can thus support gun bans and yet oppose restrictions on lifesaving medical procedures. It’s much harder to justify the opposite position, at which our legal system has arrived: the position that people should be free to own a gun for lethal self-defense, but not free to engage in medical self-defense.

Later today or tomorrow -- a brief discussion of the "imminence" limitation on lethal self-defense, and then a discussion of whether lethal self-defense is a constitutional right or only a broadly recognized common-law and statutory right.

The Oregon State Bar, which publishes a magazine for its members, generally refuses to accept advertising from employers who discriminate based on (among other things) sexual orientation. In early 2005, an Oregon lawyer objected to a National Guard attorney recruitment ad -- the Guard had "published ads from the Guard once or twice a year for the past five years at a cost of $30 each" (Oregonian, July 16, 2005) -- and the bar president "pulled the Guard's ad from its April issue and referred the issue to the group's board of governors." The board then voted not to exempt the Guard from the ban, but referred the matter to the bar's policy and governance committee. The committee voted 5-1 to recommend an exemption for the military; but in August, the board voted 11-3 not to create such an exemption.

Some people who want to allow military advertising are now circulating a petition asking the Bar to submit the matter to a vote of all Oregon bar members. I'm not an Oregon bar member, but if I were, I would sign the petition, and I would vote to exempt the military, for much the same reason as I've given with regard to law schools' failing to exempt military recruiting from their no-sexual-orientation-discrimination rules:

"Perspective," my New Shorter Oxford Dictionary says, is "a mental view of the relative importance" of things. The debate about whether law schools should exclude the military from interviewing on campus is ultimately not about gay rights. It's about perspective.

Generally, I think that a person's sexual orientation is none of the government's business. There are decent pragmatic arguments for why the military is different; and these arguments might be right, though I'm not expert enough to tell. But let's stipulate for now that the military is wrong to discriminate against gays, and that patriotic gays should be fully welcomed by the military, rather than being told that they must conceal their preferences or risk discharge. [EV adds: My tentative and non-expert thinking is that this stipulation is indeed correct, and that the military should repeal its policy.]

So what? So the military is wrong -— why should law schools therefore exclude the military from recruiting? Many excluded the military before the government threatened to withdraw federal funds from them; and many faculty members would like to do this even now. But why?

Some boycotts are purely instrumental: They aim to make things costly for some entity, so that the entity changes its ways to avoid those costs. But surely this isn't the issue here. If the military changes its policy, it won't be because they're having a slightly harder time recruiting lawyers; the boycott just can't make that sort of practical difference. What's more, officers coming from (say) Yale Law School would likely be more tolerant of homosexuality than the average officer. As a purely practical matter, discouraging Yalies from joining the military may make the military slightly less gay-rights-friendly.

So, of, course the boycott isn't really about practical questions —- it's about morality and symbolism. Even if our boycott will be completely ineffective, the theory goes, it's still the right thing to do: The military's recruitment policies are wrong, so we must refuse to help the military recruit.

And here is where we come to perspective. Let's assume the military's discriminatory practices are bad. But isn't the military also doing something good?

The military, after all, protects all of us -— straight and gay -— from foreign attack. That's pretty good. All the rights we have, we have because members of the military have bled to protect them. That's pretty good. During World War II, the American military was racially segregated, which was bad. But it defeated Japan and helped defeat Hitler, which was good. Perspective is what tells us that the good the military does vastly exceeds the badness of its discriminatory practices.

So as a moral matter, excluding the military isn't just remaining pure of complicity with discrimination. Rather, it's remaining pure by shunning the institution that protects our liberty, our equality, and our lives from forces far worse than "Don't Ask, Don't Tell" can ever be.

And as a matter of symbolism, the symbolic message isn't "We detest discrimination." Rather, it's "Discrimination is so bad that we must wash our hands of the military, in spite of all the good the military does." The boycotters have weighed the military in the balance, and they have found that on balance it should be excluded, rather than included. The symbolism of that is pretty clear.

Only a sense of perspective, a mental view of the relative importance of things, can keep one from making this mistake. Equal treatment without regard to sexual orientation may be important. But what our soldiers, organized into a fighting force, do to defend us is far more important. If that's so, then you can't treat the military as a pariah, focusing on its small error and not on its great virtue.

When I've made this argument before, some people have responded "Well, we wouldn't let a law firm interview if it discriminated against gays; why should we let the military do so?" Yup, that's right, the military, it's just another bigoted law firm. Jones & Smith, the U.S. Army, same difference. That's what the logic of antidiscrimination-above-all tells us.

But perspective reminds us that those institutions that defend our lives deserve slightly more accommodation -— yes, even despite what we may see as their vices -— than institutions that don't. And any morality and any symbolism that fails to keep this proper perspective is not a morality or symbolism to live by.

I've put the PDF file containing the petition, ready to be signed and sent in, here, but here's the text:

PETITION TO THE BOARD OF GOVERNORS OF THE OREGON STATE BAR

WHEREAS, ORS 9.148 provides:

"(4) Active members of the state bar, by written petition signed by no fewer than five percent of all active members, may request that the board of governors submit to a vote of the members any question or measure. The board of governors shall submit the question or measure to a vote of the members of the bar if the question or measure is appropriate for a vote of the members. The initiative petition must contain the full text of the question or measure proposed."

The undersigned, being active members of the Oregon State Bar, request, pursuant to ORS 9.148, that the Board of Governors of the Oregon State Bar submit the following question to a vote of the membership:

Should the Board of Governors immediately allow the Armed Forces of the United States of America to advertise in the Oregon State Bar Bulletin, notwithstanding anything to the contrary in Article 10 of the Oregon State Bar Bylaws, or any other bylaw provision, rule, or policy of the Oregon State Bar?

It is further requested that: 1) the Board of Governors shall take all steps which may reasonably be required in order to conclude the vote of the membership no later than April 30, 2007; and 2) if the majority vote of the membership is in favor of allowing the Armed Forces of the United States of America to advertise in the Bulletin, that the Board of Governors shall take all steps which may reasonably be required to implement the will of the membership, including but not limited to amendment of the Oregon State Bar Bylaws.

[Space for signatures here]

(Please return signed petitions to: Velda Rogers, 1115 Madison Street NE, No. 118, Salem, OR 97303. When sufficient signatures are collected, this petition will be submitted to the OSB Board of Governors.)

Sponsored By: Thomas Boardman (Portland); George L. Derr (Eugene); Stephen D. Finlayson (Burns, HOD Region 1); Gary M. Georgeff (Brookings, HOD Region 3); Diane L. Gruber (West Linn, HOD Region 6); CDR William P. Haberlach (JAGC) USNR-R (Medford, HOD Region 3); Eugene J. Karandy (Albany, HOD Region 3); Peter J. Mozena (Portland, HOD Region 5); Victor C. Pagel (Salem); Velda Rogers (Salem, HOD Region 6); Craig O. West (Tualatin, HOD Region 4).

Dave Hoffman's The Best Puffery Article Ever.