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.