Medical Self-Defense and a Right of the Terminally Ill to Use Experimental Medical Treatments:

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.