Academic

Ruger on Governing Health

By Lawrence Solum

Jennifer Prah Ruger (Yale University - School of Medicine) has posted Governing Health (Harvard Law Review Forum, Vol. 121, p. 43, 2008) on SSRN.  Here is the abstract:

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.

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.

Full post as published by Legal Theory Blog on April 24, 2008 (boomark / email).