Responding to Jacob E. Gersen and Eric A. Posner, Timing Rules and Legal Institutions, 121 Harv. L. Rev. 543 (2007)
Professor Eugene Volokh’s argument disregards the common law context in which the doctrine of self-defense operates and the many problems associated with adopting his proposed constitutional right of medical self-defense. Moreover, the common law doctrine of self-defense provides no or very little useful guidance for shaping a right of access to unapproved medical products.
The issue is not whether the terminally or otherwise desperately ill should have access to unapproved investigational drugs outside of clinical investigations. They should. Under current law, they do — to some extent. Arguments for increasing access to these drugs can be presented in the regulatory and congressional processes. The issue Professor Volokh raises is whether such an increase should be required by the courts, applying the doctrine of substantive due process (or some similarly ill-defined constitutional doctrine), or by the political branches as part of the democratic political process.
Is there some interest protected by Professor Volokh’s conception of medical self-defense that transcends the interests that are subject to the public policy determinations and compromises routinely hammered out by the political branches? The jurisprudence of substantive due process (or that of privacy or privileges and immunities) does not provide a reliable method for finding an answer to that question. We Americans entrust many areas affecting our lives and liberties to such determinations and compromises — for example, drafting citizens and waging war, imposing capital punishment, taking private property for public use, economic regulation, and taxation. In these and many other areas, we rely principally on the democratic process, not the courts, to prevent the political branches from trampling on important interests of individuals. Professor Volokh does not persuasively distinguish this area from those.