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| 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. |
| Moreover,
this response presents an alternative theoretical approach to the question of rights to
health and health care, arguing that a right to health care need not, indeed cannot, be
framed in an absolute libertarian framework of wholly individualistic rights against the
State. Instead, a right to health is grounded in the more positive conceptualization of
freedom — human flourishing — arguing for treating the right to health as an
ethical demand for equity in health. Unlike the legalistic, yet theoretically ungrounded,
guarantee of a “right to medical self-defense,” a right to health so
conceived purports that the regulation of self and society necessitate not just
justiciable and enforceable legal rights or instruments, but also individuals and a
collective with internalized public moral norms that inform the choices they make for
themselves and their society to ensure capabilities to be healthy for all people,
including the terminally ill. |
| 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. [ More
] |
Suggested citation: Jennifer Prah Ruger, Governing Health, 121 Harv. L. Rev. F. 43
(2008), http://www.harvardlawreview.org/forum/issues/120/may07/ruger.pdf |
© 2008 The Harvard Law Review Association
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