The Volokh Conspiracy

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.