Medical Self Defense

by on January 30, 2013 at 7:25 am in Law, Medicine | Permalink

Americans have historically put great weight on the right of self-defense which is one reason why many people support the 2nd Amendment, as the Supreme Court noted explicitly in District of Columbia v. Heller. But what about medical self-defense? John Robertson argues:

A person can buy a handgun for self-defense but cannot pay for an organ donation to save her life because of the National Organ Transplantation Act’s (NOTA) total ban on paying “valuable consideration” for an organ donation. This article analyzes whether the need for an organ transplant, and thus the paid organ donations that might make them possible, falls within the constitutional protection of the life and liberty clauses of the 5th and 14th amendments. If so, government would have to show more than a rational basis to uphold NOTA’s ban on paid donations.

Unfortunately, the Supreme Court has rejected medical self-defense arguments for physician assisted suicide and let stand an appeals court ruling that patients do not have a right to access drugs which have not yet been permitted for sale by the FDA (fyi, I was part of an Amici Curiae brief for this case). Robertson argues, however, that these cases can be distinguished. Physician assisted-suicide doesn’t fall within a long-American tradition necessary to receive due-process rights and organ transplants are not untested or experimental. It’s a good argument although it’s disappointing that the medical self-defense principle must be unjustly delimited.

Hat tip: Law, Economic and Cycling.

Andrew' January 30, 2013 at 7:44 am

I thought the FDA sanctioned marketing, not sale.

Andrew' January 30, 2013 at 9:04 am

How can the Supreme Court be so stupid? Of course you have a right to drugs when you are going to die if you are fully informed about they might give you dry mouth. There must be some reason they are so stupid. They must be illegitimate.

anon January 30, 2013 at 12:07 pm

I’m surprised helium is still legal:

From Wikipedia:
http://en.wikipedia.org/wiki/Suicide_bag

Suicide bag : A suicide bag, also known as an exit bag, is a device consisting of a large plastic bag with a drawcord used to commit suicide. It is usually used in conjunction with an inert gas like helium or nitrogen, which prevents the panic, sense of suffocation and struggling during unconsciousness (the hypercapnic alarm response) usually caused by the deprivation of oxygen in the presence of carbon dioxide. This method also makes the direct cause of death difficult to trace if the bag and gas canister are removed before the death is reported. Right-to-die groups recommend this form of suicide as certain, fast, and painless, according to a 2007 study.

See also finalexit.org

Andrew' January 30, 2013 at 3:56 pm

Once the Death Panels come into full effect it will be marketed as HellYam!

Andrew' January 30, 2013 at 3:57 pm

Side effects: squeaky voice, priapism

Frederic Mari January 30, 2013 at 8:02 am

Sorry but the argument that paying for organs is somehow self-defense and thus covered by the 2nd Amendment is just as stupid as authorizing abortions under the 14th amendment.

Don’t get me wrong – I support women’s right to choose but basing that right on the 14th amendment language on privacy & due process made and keeps on making a mockery of the SCOTUS and its reading of the Constitution.

Americans should either stop worshipping their Constitution or allow it to evolve (as it did) or should be willing to look elsewhere to solve modern problems such as payments for organs or stem-cell research or high capacity clips,,.

Andrew' January 30, 2013 at 8:04 am

My theory is that the court likes asinine interpretations because it keeps everyone in thrall of their whim.

dead serious January 30, 2013 at 10:29 am

I blame Scalia. Seriously.

dan1111 January 30, 2013 at 11:50 am

“stop worshipping their Constitution or allow it to evolve”

I’m tired of these arguments that adherence to the Constitution means we have to slavishly obey outdated >200 year old principles, no matter what. In fact, there is already a process in place to change the Constitution, and it has been used plenty of times. If there is another part of the document that we all agree is as outmoded as the horse and buggy, we can change it easily.

The Constitution is nothing more than a set of core principles that cannot be changed without a broad consensus. Of course, it doesn’t sound so dumb when you put it that way.

What people are actually complaining about is that the things they want aren’t popular enough to meet that threshold.

Not That Jim The Other Jim January 30, 2013 at 12:05 pm

>>”What people are actually complaining about is that the things they want aren’t popular enough to meet that threshold.”

Yes, but if something is desired by 100% of the New York Times Editorial Board, isn’t that popular enough? I mean, who else matters?

doctorpat January 31, 2013 at 1:28 am

Hence the constitutional right to a free heavily government subsidized press.

Frederic Mari January 31, 2013 at 8:23 am

Hold on. I am not complaining that the things I want aren’t popular enough. IMHO, the Constitution says nothing directly about abortions or pay-for-organs.

There are principles involved in both of those cases on both sides of the argument. Abortion can be about women’s right to choose what happens to their bodies, a fundamental right and also about a baby/a potential baby right to live, also a fundamental right. We simply have to weight how we judge these competing claims. And I submit that the Constitution tells us very little on the subject.

Ditto organ sales. There are clear potential issues with poor people desperate enough they’d make the sale. We forbid people selling themselves in slavery or using their organs as collateral for loans. But I doubt the Constitution really speaks to the issue…

dan1111 January 30, 2013 at 11:57 am

On the issue at hand, however, I agree with you fully: it is a ludicrous stretch to make organ donation, access to drugs, or assisted suicide “self defense” issues.

Andrew' January 30, 2013 at 12:36 pm

Not necessarily. Read the links.

And people arguing that you can just rely on democracy rather than the Constitution I think don’t quite get what the Constitution is for.

dan1111 January 31, 2013 at 3:54 am

I read the Globe article. I just don’t see it. “Self-defense” means protecting oneself from harm that is being willfully inflicted by another person. The ability to respond when someone tries to harm you is a fundamental right. But you can’t logically extend this to cases when there is no person actively inflicting the harm. The difference between the two is as stark as the difference between murder and death by natural causes.

The “life, liberty, and property” clauses in the Constitution are pretty clearly about due process before the law. It seems to me that they say “the rights defined elsewhere cannot be taken away without due process” rather than defining new rights. But even if you interpret them exceedingly broadly, you still have an uphill battle to argue that withholding a drug (which may or may not be beneficial) amounts to actively “depriving” someone of life.

It is telling that the Globe article calls medical self-defense “an expansive new right”, and that a conservative constitutional expert is quoting Roe v. Wade. It seems that even the supporters of this concept admit that this is something new, for which they are trying to discover a Constitutional basis. That is not “what the Constitution is for”. Those arguing for “democracy rather than the Constitution” are correct–if something is not explicitly protected in the Constitution, its backers should try to build up public support and get their idea passed in the legislature, rather than inventing a new Constitutional right.

A Berman January 30, 2013 at 9:10 am

Perhaps I’m not sophisticated enough to understand how suicide is a self-defense issue.

Urso January 30, 2013 at 10:12 am

You can’t fire me, I quit!

Ashok Rao January 30, 2013 at 9:12 am

I’m all for physician-assisted suicide, but I think a strong libertarian/classical liberal argument can be made for prohibiting the practice. Allowing it, in some ways, is less free than banning it.

Jon January 30, 2013 at 10:16 am

And what would those ways be?

Ashok Rao January 30, 2013 at 11:53 am

Assuming life, liberty, and property are your natural rights, nothing but nature itself should rob you of that. Assisted suicide, benign as it may be, would be a fundamental abridgment of that liberty.

Now, I wouldn’t agree with this reasoning personally, but don’t think it’s hard to make a classical liberal argument against assisted suicide. In similar vein, a liberal might argue for a pro-life approach towards abortion without really forsaking the principle of freedom and choice.

In today’s society, I am for choice and assisted suicide – but I think a principled classical liberal would be against both.

Andrew' January 30, 2013 at 1:29 pm

If your life and liberty are truly yours, you can dispose of them as you wish.

If life and liberty are to be imposed on you, then I feel like I felt every time my old manager would badger me “have you used up all your vacation yet?!?”

Roy January 30, 2013 at 3:24 pm

But we don’t allow people to sell themselves into slavery. When we abolished peonage, we decided that that was a liberty that compromised too much.

MD January 30, 2013 at 4:55 pm

And that’s when when it all started to go down hill.

prior_approval January 30, 2013 at 10:22 am

The law, in its majestic equality, should let both the rich and poor buy human organs.

Maybe I garbled the translation?

Doug January 30, 2013 at 10:44 am

Yes, virtually every other material human want and need is provided for by this thing called “the market,” where resources are bought and sold. A byproduct of which is that the rich exercise more purchasing power than the poor (in fact that’s the very definition of what rich is). Unless you’re a member of the CPUSA presumably you’re at least somewhat “OK” with this state of affairs.

Rich people also have access to better doctors, better hospitals, better nursing homes, more preventative care, more elective surgeries, better dental care, safer cars, healthier food, personal trainers to exercises them, lower stress jobs, lower risk jobs, better climate control, houses in lower air pollution areas and lower crime neighborhoods.

In other news attractive people have more sex, charismatic people have more friends, athletic people are treated as better “team players”, tall people are deemed more trustworthy, and white people are more welcome in fraternities and country clubs. There’s enough social injustice for you to go campaign for equality somewhere else without needlessly killing 10,000 people a year.

prior_approval January 30, 2013 at 11:29 am

There is a market in human beings?

Actually, there is, but civilized societies consider it to be barbaric, not to mention illegal.

‘A byproduct of which is that the rich exercise more purchasing power than the poor’

Well, justice is supposed to be something beyond purchasing power, but we are all adults here. In other words, we know justice can’t be bought, but laws can.

And I am curious – how do 10,000 die a year when a market in organs would simply change the equation so that those who currently receive transplantations, in place of those able to pay to put themselves at the head of the line, would not die?

‘Unless you’re a member of the CPUSA’

Actually, I live in Germany, a place with the radical idea that ‘Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen.’ – my translation ‘Property causes responsibility. Its use should also serve the good of the commonweal.’ (Grundgesetz, Artikel 14). They also have some interesting ideas concerning human worth, based on practical experience of what it is like to treat humans as beings without any worth at all, beyond what can be sold of their fat turned into soap, or their skin turned into lampshades.

‘In other news attractive people have more sex’

Don’t bet on it, though, a caution that applies to all your other examples, by the way. Except that last one, because as a native Virginian, I have personal knowledge of just how racism works in the U.S. Which may make one wonder – would wealthy white people put themselves at the head of the transplantation line? Personally, I am very confident concerning the answer to that question, and am thus unwilling to have it tested – see your point about country clubs to understand why.

Doug January 30, 2013 at 12:08 pm

“They also have some interesting ideas concerning human worth, based on practical experience of what it is like to treat humans as beings without any worth at all, beyond what can be sold of their fat turned into soap, or their skin turned into lampshades.”

Wow, I’ve never heard someone claim that they have a uniquely high value on human life because they’re German. Normally the stereotype runs the other way. Well as a member of the group that got turned into lampshades, by the group that you’re a member of, let me apologize for burdening you with that terrible guilt. It must truly be awful.

Next time I talk to a holocaust survivor I’ll be sure to remind that the German people have a unique monopoly on understanding the value of human life and dignity.

I’m glad to see that some of your citizens are finally getting past their terrible burden of guilt though. They’ve certainly suffered long enough.
http://www.spiegel.de/international/germany/german-ngo-to-launch-interactive-map-of-neo-nazi-activity-a-880303.html

“And I am curious – how do 10,000 die a year when a market in organs would simply change the equation so that those who currently receive transplantations, in place of those able to pay to put themselves at the head of the line, would not die?”

Let’s try simple logic and econ 101 here. If in state A the sale price of good X is some positive value, Y, do you expect supply to be higher, lower of equal than in state B where sale price is capped at 0?

There are two types of organs those that can be transplanted from a live patient and those that are vital. Let’s consider the latter first. Do you think if people who were signed up to be organ donors were provided with an annuity for the term that they were donors that there would more, fewer or equal number of organ donors then in the situation where donors were completely uncompensated.

Now let’s consider the latter type of donation, one where the patient can donate while alive. The prime case here are kidneys. A person with two working kidneys can donate one and will with very high likelihood never developer any issues that she wouldn’t have had otherwise. The loss of life expectancy is statistically zero in fact. In contrast the life expectancy of someone receiving a healthy kidney who previously had none is almost always 10 years or more.
http://www.webmd.com/news/20090128/kidney-donors-life-spans-not-shortened

It’s a basic observation that a kidney transplant is results in massive net utilitarian gain. The kidney donor suffers little to no effects and the kidney receiver has their life saved. We can also observe that this is true regardless of whether they motivation for kidney donation was “noble altruism” or “evil greediness.”

Now let’s try to guess how many kidneys are currently donated to strangers. Maybe a half dozen a year. I mean from a simple utilitarian perspective everyone with two working kidney should be donating. At last only a negligible percentage of people are truly good souls.

Now let’s try this. Let’s say that people in need of a kidney could offer say $10,000-$15,000 for a working one. And before you say that $10,000 is a prohibitive cost, remember that kidney transplants easily cost over $100,000 in medical costs to begin with. Would there be any shortage of volunteers from India, Africa or Southeast Asia for that kind of compensation? That’s equivalent to a decade or more of wages for many people. Kidney disease could basically be completely eliminated inasmuch as no one would have to die from kidney failure.

I know this seems like awful social injustice. It’s like worse than colonialism. Westerners are literally taking organs from third world people. But please explain why this isn’t a massive gain for everyone involved. Those in need of kidneys get their lives saved. Poor third world peasants get a massive landfall of cash for next to no health risks.

Cliff January 30, 2013 at 3:53 pm

So in other words, who really gives a damn about the poor, what really matters is your feeling of fancy-pants German moral superiority? Nevermind the many lives, poor and rich, something would save? I guess life is very valuable, but not quite as valuable as your moral snobbishness?

Dan Weber January 30, 2013 at 11:36 am

Everyone should suffer equally. Letting one person stop their own suffering without stopping another person’s suffering is anti-egalitarian.

prior_approval January 30, 2013 at 11:53 am

Strangely, I can hear that being said in the peculiarly nasal tone of a certain country’s media presenters, ca. 1938.

Just going for a certain historical accuracy, even if the words are English, and not German.

JWatts January 30, 2013 at 10:30 am

The 2nd Amendment approach seems absurd. How hard would it be to just have Congress remove the law? The NOTA restriction on sales of tissues and organs is absurd. The current rate of voluntary donation is fairly low.

My wife worked in the tissue field as a transplant coordinator for most of the 1990′s. Most families say no immediately.

And if the family member who is on the phone says no, that’s the end of the process. It doesn’t matter if you signed the back of your Drivers License or anything else. It doesn’t matter if most of your immediate family would have said yes, if the one who answered the phone says no, the process stops. And since those phone calls are often in the middle of the night after a tragic accident and the person answering it just wants to end the call, there is a lot of motivation to just say no and stop talking to a stranger about plucking bits and pieces out of their loved one who just died.

Bill January 30, 2013 at 10:49 am

It is always interesting that persons raise an issue to the constitutional level when they are seeking to repeal legislation they disagree with.

Why not convince your fellow citizens that the legislation should be repealed? Or are there other arguments for the law, which, on balance, makes it a better choice.

Either way, that is why we have legislatures.

Andrew January 30, 2013 at 11:18 am

“Why not convince your fellow citizens that the legislation should be repealed?”

Well, in the instance that you are dying of cancer (1) you are a minority and (2) you are dying and (3) there probably is no law.

Can you point me to the law that says “The FDA shall forcefully withhold any chemical it deems to away from terminal cancer patients”?

I doubt there is one.

prior_approval January 30, 2013 at 11:32 am

Schedule I classification, applying to cannabis.

Andrew' January 30, 2013 at 11:37 am

Ooooooookay…

Andrew' January 30, 2013 at 11:38 am

I’ll play along… So your defense…such as it is…is a known dumb law?

Andrew' January 30, 2013 at 11:40 am

So far, the actual defense seems to be the protection of the ‘integrity’ of the FDA’s clinical trial system (as if they couldn’t figure something else out). So, I’d like to amend my opinion of Rahm Emanuel. His brother is an ass too.

Andrew' January 30, 2013 at 11:44 am

Okay, I see the problem, by “any chemical” I did not mean ‘go find any really bad example.’ I meant any as in the general sense. You have given a specific, which evidences my point. The FDA, as dumb as it is, can prohibit a specific chemical from cancer patients, as dumb as that is, due to addictiveness, as dumb as that is in the case of MJ.

What there is no law is that the FDA must prevent any chemical not otherwise approved from being available to cancer patients.

Andrew' January 30, 2013 at 11:46 am

Now don’t get me wrong, they are trying to do this. In fact, you might be in violation of the FDA if you claim eating broccoli fends off cancer. This asinine situation is beyond their authority and this is what the SupCo should, if they could get their heads separated from their ani, would be fixing.

prior_approval January 30, 2013 at 11:55 am

Don’t let me stop the monologue, but the Schedule I classification is from the DEA, not the the FDA.

Andrew' January 30, 2013 at 12:51 pm

It’s both. But if it’s just from the DEA then your retort is a non-example.

Feel free, you or Bill, interject with something that makes sense.

Andrew' January 30, 2013 at 12:55 pm

Let’s recap:

Bill says: Just change the law

I say: There is no law that says the FDA must approve any chemical ingested by someone, and figuring this out is fine for the Courts to spend time on (in fact it was the courts themselves who escalated this to the Federal/Constitutional level)

You say: Marijuana.

I tried to even engage that, then you say “haha! It’s not even the FDA, it’s the DEA” thus making your retort even more meaningless.

Doug January 30, 2013 at 11:37 am

Virtually every “squishy” judicial interpretation of the Constitution in the 20th century was on the left. Honestly I cannot think of one major landmark right wing decision since 1900 that hasn’t been strictly judicially constructive. That is an alien with no knowledge of US history or politics reading the Constitution and making a decision only hearing the relevant facts and arguments to the case.

The left deploys the weapon of having its justices interpret the Constitution however they feel like to serve the left’s political goals of the day. The right’s justices meanwhile insist on a general pattern of interpreting the law based on the actual text of the Constitution and court precedent. While this may frequently obstruct the left’s political goals by preventing their justices’ flimsy rationalizations from carrying the day, it does nothing to actually push the right’s agenda besides holding the status quo.

Certainly anyone with common sense can see that this situation is highly asymmetrical. The left deploys a political tool that the right hardly if ever touches. Well, as a member of the right, I want this stop. I want to even the playing field, if the left insists on deploying this tactic, then I want the right to counter-attack, not just defend.

It’d be like a war where only one side uses nuclear weapons against the other, while the other keeps fighting conventionally. Do I oppose nuclear war and want to restrain my side from using it if not attacked? Certainly. Do I want my side to retaliate with nukes if we’re attacked with them though? Hell yes. (And no setting up a missile defense shield to stop incoming nukes doesn’t count as my side retaliating).

dead serious January 30, 2013 at 1:11 pm

Assault weapons are definitely status quo from the days of Jefferson. For example.

Doug January 30, 2013 at 3:09 pm

Yes, my understanding is that packet switching communication was also quite rare in Jefferson’s days. Clearly a logical interpreter would no doubt come to the conclusion that the Internet is not covered by the First Amendment.

dead serious January 30, 2013 at 6:46 pm

So your one example invalidates all others. Interesting debate tactic.

Dan Weber January 30, 2013 at 11:38 am

You are wondering why some people prefer “rule of law” over “rule of man.”

I’m sure you were a big fan of Proposition 8. After all, it was “democratic.”

JWatts January 30, 2013 at 11:49 am

Reference: ‘Constitutional Law’ professor Louis Seidman:

“I’ve got a simple idea: Let’s give up on the Constitution. I know, it sounds radical, but it’s really not. Constitutional disobedience is as American as apple pie.

To be clear, I don’t think we should give up on everything in the Constitution. The Constitution has many important and inspiring provisions, but we should obey these because they are important and inspiring, not because a bunch of people who are now long-dead favored them two centuries ago.”

Brandon Berg January 31, 2013 at 12:51 am

Why not convince your fellow citizens that the legislation should be repealed?

We’ve been trying that for years, and will continue to do so. A judicial approach may succeed where a legislative approach has failed.

That said, the obvious problem with trying to convince the general population is that people’s political opinions are not generally susceptible to logical arguments.

Andrew' January 30, 2013 at 2:07 pm

The more I read, the more I think that the courts produced a wrong decision regarding Abigail Alliance v. von Eschenbach. A few years ago I would have assumed they knew what they were doing. Now, not so much.

Points:
“left standing the appellate court decision, which said that patients have no right to “a potentially toxic drug with no proven therapeutic benefit.”[1]”

Is that true?

http://en.wikipedia.org/wiki/Off-label
“The FDA does not have the legal authority to regulate the practice of the medicine, and the physician may prescribe a drug off-label. Contrary to popular notion, it is legal in the United States and in many other countries to use drugs off-label, including controlled substances such as opiates.”

http://en.wikipedia.org/wiki/Expanded_access
“A single-patient IND is a request from a physician to the FDA that an individual patient be allowed access to an investigational drug on an emergency or compassionate use basis.”

http://en.wikipedia.org/wiki/Abigail_Alliance_for_Better_Access_to_Developmental_Drugs
The FDA currently restricts access to those drugs to patients in clinical trials and patients who get a compassionate use exemption,

So, the FDA has somehow deemed itself the arbiter for compassionate use exemptions. This is the issue. Where does the FDA derive the authority to stand between a supplier and a doctor issuing an off-label prescription to a patient. There is obviously no positive right to drugs. However, there is likely no right for the FDA to arbitrarily prevent the drugs from being obtained (or to deem it so by fiat) by desperate patients and the ‘self-defense’ argument may in fact be relevant because the FDA’s defense is the integrity of their clinical trials and not the well-being of said desperate patient. I’m not even sure where the FDA thinks they get the authority to prevent the obtaining of chemicals by patients. Again, in the past I would have assumed that little old me and 10 minutes of Googling must be missing something.

Andrew' January 30, 2013 at 3:55 pm

Who is this guy? ;)

Tabarrok A. Assessing the FDA via the anomaly of off-label drug prescribing. Independent Review. 2000. V;1:25-53.

http://www.independent.org/publications/tir/article.asp?articleID=240&issueID=21

Cyrus January 30, 2013 at 7:42 pm

FDA does not regulate the patient obtaining the chemical. (If the chemical is scheduled, DEA does, but that’s a different story.) FDA does regulate the pharmaceutical manufacturer marketing the chemical to patients.

Andrew' January 31, 2013 at 3:32 am

Then how do they keep it from terminally ill patients?

Gene Callahan January 31, 2013 at 6:59 am

“Unfortunately, the Supreme Court has rejected medical self-defense arguments for physician assisted suicide …”

Well, at least they realized suicide is not a form of “self-defense”!

careless January 31, 2013 at 11:50 am

Even when the OP is wrong, PA manages to find a way to disagree and also be wrong. It’s an amazing talent.

Rob January 31, 2013 at 3:54 pm

Steve Jobs had a liver transplant in Memphis, TN not because it was the best location for his care, but because by listing his transplant needs at multiple hospitals he increased his chances of finding a match quickly (local hospitals get first chances at available organs). So I think we’ve managed to allow payment for valuable consideration. It is simply more expensive than most people can afford.

Tim January 31, 2013 at 6:23 pm

Because much like guns your concept of “self-defense” can involve “collateral damage”. Medical science hasn’t fallen to the simplistic thinking of libertarians yet.

Thankfully we don’t yet let ninety year old alcoholics buy 12 livers causing 12 better, younger candidates die in the process.

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