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Unenumerated Rights and the Limits of Analogy: A Critique of the Right to Medical Self-Defense

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

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA restricts access to unapproved drugs (subject to certain exceptions) in the interest of public health, that is, to prevent patient exposure to unsafe or ineffective drugs and to maintain a functional clinical trial system (the chief mechanism of bringing safe and effective drugs to the market). Congress banned the sale of organs to avoid what it took to be a number of practical and ethical harms, including coercion of the poor and commodification of the body and its parts. The only way for the individual to avoid the political process and substitute his own normative balancing of these goods and harms for that of the government, is to do so pursuant to a fundamental constitutional right. Thus, for Volokh’s project to succeed, he must demonstrate that the right he proposes is “objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

This Article examines Volokh’s case for a fundamental right to medical self-defense, and concludes that none of his suggested common law grounds are adequate to justify it. Self-defense is not a fitting analogy to, and thus does not provide support for, this entitlement. The doctrine of necessity (or choice of evils) is a more promising common law analogy, but it is also an unsound foundation. Lacking any roots in the nation’s history and tradition, the entitlement to medical self-help cannot, therefore, rise to the level of a fundamental constitutional right.