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Harvard Law Review Forum

Governing Health

Responding to Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harv. L. Rev. 1813 (2007)

Professor Volokh argues for a constitutional right to “medical self-defense” for two purposes: first, to allow terminally ill patients to purchase, at their own expense, drugs that have not completed the Food and Drug Administration’s (FDA) approval process and, second, to allow all individuals access to transplanted organs for which there are current bans on payment. His claim, in essence, is that we should allow markets for experimental drugs and human organs and that prohibition of such markets is unconstitutional. He grounds this “constitutional right” to “medical self-defense” in the common law justification of lethal self-defense, and sees this principle as analogously justifying abortion jurisprudence and therefore a relevant justificatory claim for other domains of health care.

Taking the controversial Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach case as his point of departure, Professor Volokh’s reasoning adroitly connects the dots in a web of libertarian thought that takes, as its basis, negative rights of freedom from interference. More specifically, he uses the concepts of ordered liberty and justice to make his claim. Some have already argued that this line of argument is not sufficiently justified on either common law or constitutional grounds. This response takes a different approach and focuses more on the theoretical concerns with Professor Volokh’s position, arguing that it lacks sufficient philosophical and theoretical justification as it pertains specifically to libertarian philosophical discourse.

Finally, drawing on the Aristotelian notion of combining ethical and technical rationality, this response argues that the State is obligated to generate public goods through scientific evaluation that are required for consumption by individual agents, as a critical component of a framework to effectuate a right to health. The FDA and other State supported entities have not only a legislative claim, but also a moral duty to draw on the collective scientific resources a society has to offer in providing the rigorous and scientifically grounded evidence base needed to give all individuals the opportunity to be healthy. Efforts to undermine and delegitimize this role rob all individuals (present and future) of the necessary conditions for their optimal health functioning and health agency.