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Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs:

This is a new essay of mine, which should be coming out in April 2007 in the Harvard Law Review. The article, lean and trim (by my standards) at 30 pages, is available from this page. In the meantime, here's the Abstract:

Three women lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.

Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in danger, she has a constitutional right to save her life by hiring a doctor to abort the viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, rather than threatening her life.

Katherine lives nearby. A person breaks into her home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Just as Alice may protect her life by killing the fetus, Katherine may protect hers by killing the attacker, even if the attacker isn’t morally culpable, for instance if he is insane. And Katherine has a right to self-defense even though recognizing the right may let some people use false claims of self-defense to get away with killing the innocent.

Ellen, back in the hospital, is terminally ill. No proven therapies offer help. An experimental therapy seems safe, because it has passed Phase I FDA testing, yet federal law bars its use outside clinical trials because it hasn’t been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer the therapy.

Olivia is dying of kidney failure in the room next to Alice’s and Ellen’s. A kidney transplant would likely save her life, just as an abortion would save Alice’s, lethal self-defense may save Katherine’s, and an experimental treatment may save Ellen’s.

But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney. Barring compensation for goods or services makes them scarce. Alice and Ellen would be in jeopardy if doctors were only allowed to perform abortions or experimental treatments for free. Katherine likely wouldn’t be able to defend herself with a gun or knife if weapons could only be donated. If organ providers or their heirs could be compensated, many more organs would be available, and Olivia would be much likelier to get the life-saving kidney. But federal law bans organ sales, and thus frustrates Olivia’s ability to protect her life.

My claim is that all four cases involve the exercise of a person’s presumptive right to self-defense — lethal self-defense in Katherine’s case, and what I call medical self-defense in the others.

This is a constitutional right: I will argue in Part II that Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman’s life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. Alice is free to have surgery in which a doctor inserts devices into her body to excise a fetus that, tragically, threatens her life. Ellen should likewise be free to have a procedure in which a doctor inserts chemicals into her body to destroy a tumor that threatens her life. And the government should not place substantial obstacles in the way of Olivia’s having a procedure in which a doctor inserts an organ into her body to replace a failing organ that threatens her life. It can’t be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus.

I will also argue, in Part III, that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it’s treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one’s life against medical threats as well as against human or animal threats. Even if the Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people’s medical self-defense rights just as they protect people’s lethal self-defense rights, and as the public overwhelmingly supports women’s abortion-as-self-defense rights. While a legislature need not fund people’s self-defense, it generally ought not substantially burden people’s right to defend themselves.

In Parts IV and V, I’ll apply the abortion-as-self-defense and lethal self-defense analogies in more detail to experimental drugs and to compensation for organs. I’ll argue that the right of medical self-defense offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one’s life. And I’ll argue that the right makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people’s lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.

I will also argue that, while this presumption is potentially rebuttable, it should take much to rebut it. Recognizing the right to medical self-defense as a constitutional right or a moral right means that the government should have a very good reason to substantially burden the right, and that the restriction should be as narrow as possible.

In particular, while the right may be regulated in some ways — for instance, to prevent the killing of people by organ robbers — such regulations can and should be far less burdensome than a total ban on organ sales would be. We respect and value self-defense rights enough that we allow lethal self-defense, even given the risk that false claims of self-defense can be used as a cloak for murder: Rather than prophylactically banning all use of lethal force, we make certain uses illegal and rely on case-by-case decisionmaking to discover these improper uses and to deter them. The same should apply to payments for organ transplants.

Finally, in Part VI, I’ll argue that a right to medical self-defense is not only logically supportable, but also potentially successful both in political debate and in the judicial process. Both liberal and conservative judges and voters should be potentially open to it; and I hope that the analogies I offer in this Essay can be used to help persuade them.

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The Two Abortion Rights, and Therapeutic Abortions as Medical Self-Defense:

The Introduction to my Medical Self-Defense article attracted enough interest that I thought I'd serialize the article on the blog; and the Harvard people were kind enough to let me do that. So let me follow the Introduction with a brief discussion of the Court's existing recognition of a constitutional medical self-defense -- the (surprisingly uncontroversial) right to get even late-term abortions when needed to protect the mother's life. (I do not rely on the more controversial right to get such abortions to protect the mother's health, including possibly emotional or psychological health, or on the right to get particular abortion procedures such as those at issue in Stenberg v. Carhart.) Recall that I'm arguing here both that the Court should recognize a constitutional right to medical self-defense, by analogy to the Court's past precedents, and that even if no such constitutional right is recognized, legislators and voters ought to recognize a moral right to medical self-defense.

Roe and Casey hold that the Constitution protects the right to an abortion. But this right actually consists of two different rights -- different in scope, justification, and popular support.

The first is the highly controversial right to abortion as reproductive choice, which generally allows pre-viability abortions on demand. The second is the right to abortion after viability when necessary “to preserve the life or health of the mother.” This is not the right to abortion on demand, since a woman must show a particular reason for a post-viability abortion. Nor is the right justified by the woman’s right to choose whether to bear a child: If the medical danger hadn’t arisen, the woman would have been obligated to bear the child to term.

Rather, the right is a right to medical self-defense -- the right to protect your life using medical care, even when this requires destroying that which is threatening your life. This right exists despite the interest in protecting the viable fetus’s life, an interest Roe and Casey held compelling enough to trump the abortion-as-choice right. Yet this right is largely uncontroversial, endorsed even by Chief Justice Rehnquist’s Roe dissent, by all the restrictive abortion laws in effect when Roe was decided, and by public opinion. Only 9% to 15% of Americans endorse the view that abortions should be banned even when the woman’s life is in danger. Compare this to the 42% to 58% of Americans who endorse the view that abortion should be generally banned, and available at most to protect the woman’s life or in cases of rape or incest, and the 33% to 46% who endorse a similar view but without even a rape or incest exception.

The medical self-defense right has been expressly recognized just in abortion cases. Yet it can’t be logically limited to situations where the defensive procedure is abortion, and rejected in cases where the woman needs to defend herself using experimental drugs or an organ transplant. Nothing about therapeutic postviability abortion makes it more deserving of protection than any other medical self-defense procedure.

One can’t distinguish postviability abortions on the grounds that they involve the woman’s reproductive choice. After viability the time for that choice has passed, and the ability to get a therapeutic abortion is a side-effect of the woman’s medical self-defense right, not her abortion-as-choice right. Nor can one distinguish therapeutic abortions on the grounds that they involve control over the woman’s own body. A patient’s adding substances (such as medicines or an organ) to her body, as well as removing substances from her body (say, through drugs that kill cancer cells), involves her control over her body as much as does a doctor’s inserting a surgical instrument to remove a fetus.

The medical self-defense procedures may cause some harm. Ellen’s experimental drug may shorten Ellen’s already short expected lifespan. It may also cost her money for what the government thinks may well be a false hope (though note that the pharmaceuticals in the Abigail Alliance case were merely not proven effective, rather than proven ineffective). Likewise, as I discuss [below], allowing compensation for organs has been said to potentially cause various other harms.

Yet Roe and Casey demand far more than a showing of some conceivable risk to some government interests before Alice’s right to abortion-as-self-defense may be restricted. Even the compelling interest in protecting the life of a viable fetus -- a fetus that is in many ways indistinguishable from a born baby -- isn’t enough to overcome Alice’s rights.

The same should hold for other medical procedures used to protect one’s life. Modest burdens on the right to medical self-defense, such as an informed consent requirement or a short waiting period, would be constitutional. But to impose a substantial burden on the patient’s right to protect her life through medical procedures, the government should have to show an extremely powerful reason for burdening the right, and to show the burden is genuinely necessary because the government’s goals can’t be achieved in less burdensome ways. And even when the interest is powerful in the abstract, it might still sometimes be rejected in favor of a right to protect one’s life, as the interest in protecting fetal life is rejected under the abortion-as-self-defense right.

There is, of course, an important limit to the right to medical self-defense (or to lethal self-defense): The right is constrained by the rights of others who aren’t threatening the woman’s life. No woman has a constitutional right to force a doctor to perform an abortion, even to save her life. Likewise, Ellen’s constitutional right to medical self-defense wouldn’t entitle her to steal experimental drugs.

But this is no different from the way other indisputably recognized constitutional rights operate. My First Amendment rights don’t let me steal a printing press, speak on your lawn, or trespass on private property to worship at the site of an alleged miraculous apparition (even if Employment Division v. Smith were overturned).

This is not because property rights are more important than free speech rights, free exercise rights, or self-defense rights; rather, it’s because even important rights are bounded by the rights of others. Naturally the exact scope of those rights of others -- for instance, whether they include the right to freedom from defamation, emotional distress, offense, or interference with business relations -- has long been the subject of debate. But in our legal system an inherent, and I think necessary, aspect of constitutional rights is that they are bounded by at least some rights of others. The existence of such boundaries doesn’t contradict the existence of the right, or weaken the right’s force when exercise of the right does not conflict with the rights of others.

Next week, I'll talk more about lethal self-defense, and then get to the payoffs, which have to do with experimental drugs and compensation for organ transplants.

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Lethal Self-Defense and What It Tells Us About Medical Self-Defense:

I build my Medical Self-Defense argument partly on the right to abortion-as-self-defense, but partly on the analogy to lethal self-defense.

The broad acceptance of the abortion-as-self-defense right should be no surprise. Protecting one’s life has long justified violating many laws, whether against homicide, battery, discharging firearms, cruelty to animals, killing endangered species, or destroying another’s property. If a person or animal is threatening you with death, serious physical injury, rape, or kidnapping, you may defend yourself through otherwise unlawful violence. Likewise with therapeutic abortions: As a 1939 English case held, in reading a “life of the mother” exception into an abortion ban that didn’t include such an exception, “as in the case of homicide, so also in the case where an unborn child is killed, there may be justification [meaning a self-defense justification] for the act.”

The analogy between lethal self-defense and medical self-defense is necessarily not as close as the analogy between one form of medical self-defense (via abortion) and another. But, I’ll argue, it’s close enough. My hope is that people who feel strongly about the right to lethal self-defense (as do I), but who are skeptical of what they see as newly minted rights such as medical rights justified on pure autonomy grounds, will come to agree that the moral case for medical self-defense is at least as strong as the case for lethal self-defense. The Legal Status of Lethal Self-Defense -- Generally: American law has consistently recognized people’s rights to kill attackers to protect themselves against death or serious physical injury, and generally against rape or kidnapping as well. This right covers even killing those who caused the danger through no moral fault (or minimal moral fault) of their own. You may kill those who are threatening your life negligently, or through an unfortunate nonnegligent accident. You may kill attackers who are insane and thus not morally culpable. You may use self-defense against animals, even when such actions would otherwise violate endangered species law, animal cruelty laws, or laws barring destruction of others’ property.

Moreover, the legality of lethal self-defense endangers even those who aren’t attacking anyone. Say I cold-bloodedly want to murder you. If the self-defense defense didn’t exist, I would know that if physical evidence linked me to the attack, I would likely be convicted.

But allowing self-defense may help me escape: “He threatened me, and I thought he was reaching for a gun,” I would falsely say, and the only other witness -- you, the victim whom I am painting as the attacker -- won’t be there to contradict me. Some jurors might be persuaded beyond a reasonable doubt that I’m lying, but some might not, especially if I’m a sympathetic character (say, a police officer) and the person I killed is not. Lethal self-defense is thus a right that’s protected even though it can sometimes lead to serious harm, including harm to innocent people. And if I may kill someone to protect my life, why shouldn’t I be presumptively free to protect my life using medical procedures that don’t involve killing, of the guilty or of the innocent? Limits on Lethal Self-Defense: The right to lethal self-defense is in some ways limited, as are other rights, and as the right to medical self-defense would be as well. First, the right is uniformly accepted only when self-defense is necessary to defend one’s life, or at least prevent serious harm to oneself: You generally can’t kill to prevent a bruise or a petty theft. Similarly, I am arguing for medical self-defense against deadly or at least radically debilitating threats (such as paralysis or dementia), not the common cold.

Second, the right to lethal self-defense, like other rights, doesn’t in my view include the right to injure the life, liberty, and property rights of people who aren’t threatening your life. If I’m starving to death on a lifeboat, I have no right to kill and eat my fellow passengers. If a criminal forces me to kill someone, my actions won’t be legally justified. Even taking another’s property to save my life isn’t, I think, part of my self-defense rights, though the law may still decline to punish some of these actions due to sympathy towards my predicament.

This limitation, though, doesn’t affect the standard medical self-defense scenarios I discuss. Ellen doesn’t want to steal the drugs from the pharmaceutical company. Olivia doesn’t want to kidnap someone to cut out his organs. Even Alice is killing the fetus who threatens her life, albeit threatens it with no moral culpability.

Finally, some American jurisdictions burden people’s ability to practice lethal self-defense by constraining their access to the tools that are often needed for effective self-defense: guns. One jurisdiction (D.C.) generally bars people from possessing any loaded firearms. A dozen states bar most people from carrying concealed loaded firearms in public places. Felons, drug addicts, the insane, and children are generally barred from possessing guns altogether.

Yet even these laws do not cast doubt on the existence of lethal self-defense rights. To begin with, in most states, the law endorses most people’s ability to defend themselves even using guns, despite the substantial harm that guns cause to innocents. Most high-profile firearms restrictions, such as bans on so-called “assault weapons,” don’t substantially burden people’s ability to have guns for self-defense, since they leave people free to use many other guns. All jurisdictions but D.C. let law-abiding adults possess loaded shotguns for home defense. Thirty-eight states let law-abiding adults carry guns for self-defense in most places outside the home either without a license or with a license that the police are generally required to issue.

Even when someone is generally barred from possessing firearms, self-defense against an imminent threat is usually a valid defense. In some states that don’t automatically allow law-abiding adults firearms carry licenses, even nonimminent danger -- so long as it’s well above what the average person faces -- is a factor in favor of granting the license, or of rendering the license requirement inapplicable. In other states, the concealed weapons restrictions are waived for people who show sufficient threat from an identifiable potential attacker.

Moreover, even when gun laws do substantially burden people’s ability to use lethal self-defense, the reason given is generally that gun bans are necessary to protect innocent lives, because any lesser regulations wouldn’t do the job. This fits well with the lethal self-defense right I describe -- a right that (a) is generally accepted, (b) presumptively may not be substantially burdened, but (c) may be substantially burdened when the danger to others’ lives is seen as being so grave as to overcome the right’s value in protecting lives.

One can thus support gun bans and yet oppose restrictions on lifesaving medical procedures. It’s much harder to justify the opposite position, at which our legal system has arrived: the position that people should be free to own a gun for lethal self-defense, but not free to engage in medical self-defense.

Later today or tomorrow -- a brief discussion of the "imminence" limitation on lethal self-defense, and then a discussion of whether lethal self-defense is a constitutional right or only a broadly recognized common-law and statutory right.

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Lethal Self-Defense, Medical Self-Defense, and Imminence:

More from my Medical Self-Defense paper; see the original for footnotes, should you want it. Thanks also for your comments: Among other things, they've persuaded me that I need to explain in more detail why I use the self-defense defense as an analogy instead of the necessity defense -- I think I have a good justification for it, but it sounds like I'll need to make it explicitly, and I'll do that on-blog and likely in the article as well. In the meantime, a brief discussion of imminence, to be followed shortly by a discussion of the constitutional law and self-defense:

Lethal self-defense is generally allowed only in response to imminent threats of harm, usually measured in minutes; medical self-defense would often be used to prevent a death that’s likely in months. But for medical self-defense, it makes sense to treat imminence as simply requiring a present medical condition that seriously threatens life in the relatively near future -- that is to say, as an application of a necessity requirement -- not as requiring that death be likely within the hour.

The imminence requirement in lethal self-defense is aimed at serving several functions. First, imminence is a rough proxy for necessity of lethal response: Lack of imminence is correlated with the presence of alternatives (escape, calling the police, and the like) and the possibility that the threatener’s anger will cool. Second, the imminence requirement diminishes erroneous claims of necessity, since judgments about long-term threats tend to be less accurate than judgments about short-term threats. Third, the risk of false claims of self-defense would be especially high if “he had told me some time before that he wanted to kill me” were justification enough for killing. Fourth, insisting on tools that help show necessity and help weed out false claims is especially important because unnecessary self-defense causes unnecessary death.

For medical self-defense, all these functions would best be served by seeing imminence as simply requiring a present medical threat. The best proxies for necessity are the present medical threat (your kidneys are actually sick) and the lack of a satisfactory permitted therapy. You can’t flee kidney disease that can be cured only through a transplant, or call the police to protect you. Present medical threats of future harm are generally more reliably diagnosable than human threats. There is little risk of insincere claims of danger, especially since the diagnosis is made by a trained and objective medical expert. And even if an error happens, it will likely endanger others far less than erroneous lethal self-defense would.

These reasons help explain why the law doesn’t distinguish a woman who gets a post-viability abortion to protect her life against immediate danger (her pregnancy was threatening likely immediate death) from a woman who gets a post-viability abortion to protect her life against real but not immediate danger (her pregnancy was threatening likely death in a month). So long as the dangerous medical condition currently exists, the woman may defend herself against the risk right away, especially since waiting may increase the danger. The same should apply to other forms of medical self-defense.

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The Constitutional Status of Lethal Self-Defense:

Do we have a constitutional right to use deadly force in defense of life (or defense against rape, kidnapping, serious bodily injury, and perhaps more)? Oddly enough, the matter hasn't been settled, and has been little studied by scholars. Fordham lawprof Nicholas Johnson has a forthcoming article on the subject, but unfortunately I couldn't find a draft of it on the Web; George Mason lawprof Nelson Lund has a response. There's a smattering of other material on it, but quite little. Here's my short section on the subject; for footnotes, see here:

Lethal self-defense is so broadly accepted that courts have rarely had occasion to confront grave restrictions on it, and thus haven’t squarely decided its constitutional status. Some lower court opinions have said that there is such a right, and a recent four-Justice plurality opinion -- authored by Justice Scalia, usually no friend of unenumerated constitutional rights -- suggested the same. And the Court’s unenumerated rights caselaw provides a strong case for recognizing a presumptive federal constitutional right to self-defense.

The right to self-defense is important to people’s lives, and firmly rooted in longstanding American tradition. Framing-era sources refer to it as a natural right. Blackstone wrote of the right to prevent “any forcible and atrocious crime,” even with lethal force, as “justifiable by the law of nature”; St. George Tucker, one of the leading American commentators of the first half of the nineteenth century, described “[t]he right of self defence” as “the first law of nature.”

The right has been as broadly accepted as the rights to bear and raise children and to live with one’s family members, and more broadly accepted than the right to an abortion or even the right to use contraceptives. Even if due process or the Ninth Amendment is interpreted as protecting only those rights that were recognized as important common-law rights in 1791 or 1868, self-defense would qualify. The right has never been absolute, but in this respect it is like most constitutional rights, enumerated or unenumerated.

The right is also secured by forty-four state constitutions. Twenty-one of these, dating back to the 1776 Pennsylvania Bill of Rights, expressly secure the right to “defend[] life.” Forty, dating from 1776 to 1998, secure a right to keep and bear arms in defense of self, which presupposes at least the traditional core of lethal self-defense.

Two court of appeals decisions have expressly rejected a constitutional right to lethal self-defense, but with little analysis, and in the course of upholding two rules that may well be constitutional even if the constitutional right is recognized: prison disciplinary rules categorically rejecting prisoner self-defense claims, and the rare state rules requiring defendants to prove self-defense by a preponderance of the evidence. Even if prisoners ought to lack a constitutional right to self-defense, this says little about the right outside prison -- prisoners are subject to far greater constraints on most of their constitutional rights than are nonprisoners. And even if defendants may be required to prove self-defense, one can have a constitutional right and yet bear the burden of proving that the conditions for its exercise are satisfied. When the Supreme Court upheld laws placing the burden of proving self-defense on the defendant, it did so without opining on whether there’s a constitutional right to self-defense.

Finally, if the Court concludes that the Second Amendment secures an individual right aimed partly at self-defense, thus endorsing the view expressed by Congress and by the White House Office of Legal Counsel, though only by a minority of federal circuit judges, then some right to self-defense might be inherently protected through the Second Amendment. But, as I argue above, a right to self-defense (though potentially limitable by gun control laws) should be recognized even without reliance on the Second Amendment.

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Medical Self-Defense and a Right of the Terminally Ill to Use Experimental Medical Treatments:

So far, the excerpts from my Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs article have focused on the established constitutional right to abortion-as-self-defense, and the established common-law, statutory, and possibly constitutional right to lethal self-defense. Now I turn to the places where my medical self-defense arguments would make a difference; I will soon turn to the most controversial item — the impropriety and unconstitutionality of the ban on compensation for organ transplants — but for now I start with a right of the terminally ill to use experimental medical treatments:

Let us turn to Ellen, who is terminally ill. Existing therapies, doctors say, are useless. An experimental drug offers some hope, and FDA Phase I tests suggest that it’s safe; but it is banned by federal drug law, because it has not yet been shown effective.

Ellen’s right to medical self-defense should exempt her — and the doctors and pharmaceutical companies whose assistance she needs — from the ban. Alice may kill her viable fetus to protect her life, and may enlist her doctor’s help to do so. Katherine may kill her attackers, whether guilty humans, morally innocent (for instance, insane or mistaken) humans, or morally innocent animals. Ellen should have at least an equal right to ingest potentially life-saving medicines, without threatening anyone else’s life.

This is not a general autonomy argument, premised on the theory that all people should be free to ingest whatever they choose into their body. Rather, it’s an argument specifically focused on the right to self-defense, a right supported both by the Court’s caselaw (Roe and Casey) and by the longstanding acceptance of the right to lethal self-defense.

What justification can the government have for limiting Ellen’s rights? Ellen’s use of experimental drugs might jeopardize what little time she has, and cost her money that may prove wasted. Yet if people may protect their lives even by taking a viable fetus’s life or an attacker’s life, they should be as free to risk their own short remaining spans in trying to lengthen those spans. [Footnote: Compare cases such as In re Guardianship of Browning, 568 So.2d 4, 14 (Fla. 1990), which conclude that where a patient has an incurable disease, the state’s interest in preserving his life isn’t compelling enough to trump the patient’s right to refuse treatment (a right protected by Cruzan v. Director, 497 U.S. 261, 278 (1990)). If the state may not use the interest in preserving life to trump the patient’s right to end his life through refusing treatment, it should be even less able to use the interest in preserving life to trump the patient’s right to try to prolong his life through experimental treatment.] Paternalistic government interests suffice where no constitutional rights are involved, but they shouldn’t justify blocking a person’s right to protect her own life.

Terminally ill patients’ right to use experimental drugs might also interfere with randomized clinical drug studies. It’s possible that so many patients will insist on getting a not fully tested but promising drug that researchers will be unable to scientifically test the drug’s effectiveness. If people can just buy the drug, they may not want to enroll in a study in which they might get a placebo instead of the drug.

Yet even if the need-to-test argument justifies some limits on the use of experimental drugs even by the terminally ill, it doesn’t mean that people lack medical self-defense rights — it merely means that these rights may sometimes be trumped by a strong enough justification. Moreover, the argument justifies limiting medical self-defense only when such limits are really necessary for conducting clinical studies, and when no other alternatives will do. For instance, if the studies require 200 patients, and there are 10,000 who seek the experimental therapy, there’s little reason to constrain the self-defense rights of all 10,000. Likewise, if the drug is being studied now only on people who suffer from a particular kind or stage of a disease, it shouldn’t be legally barred to those who would fall outside those studies in any event. If we must strip people of self-defense rights to save many others’ lives in the future, this tragic constraint should be imposed on as few people as possible and to as small an extent as possible.

There is one difference between Alice and Ellen: Ellen’s experimental therapy is much less likely to be successful than Alice’s therapeutic abortion would be. Yet there’s no reason why self-defense rights should be limited to sure self-defense. Lethal self-defense is allowed even though it is often not completely reliable — even if Katherine tries to use lethal force, she may be overcome by the home invader. Similarly, imagine a woman who is sure to die without an abortion, but who may still die even with one. Her abortion-as-self-defense right should remain even if the therapeutic abortion will increase the chance of survival only by a fairly small (or uncertain) amount. [Footnote: At most, some people might reach a different result if the fetus is likely to survive the woman’s death: As between a 100% chance of maternal survival and fetal death and a 100% chance of maternal death and fetal survival, they would choose allowing the woman to abort; but as between a 10% chance of maternal survival coupled with sure fetal death and a 100% chance of fetal survival coupled with sure maternal death, they would choose protecting the fetus. Yet even they would justify this conclusion by saying the woman’s right to self-defense is trumped by the need to protect a viable fetus’s life — not by claiming that the woman’s right vanishes because her defensive tactics aren’t certain to succeed.]

The D.C. Circuit’s decision in Abigail Alliance [which reached the same result I argue, but which was a 2-1 decision that might yet be overturned on en banc review or by the Supreme Court] rested in part on the traditionally recognized right to defend one’s own life; yet it didn’t cite the close analogy to abortion-as-self-defense, or discuss the state constitutional protections for the right to self-defense. These analogies, I think, substantially add to the case the Abigail Alliance panel made.

Finally, some might respond that courts generally shouldn’t recognize unenumerated constitutional rights. The right to abortion — even abortion-as-self-defense — ought not have been constitutionalized, they’d argue, and ought not be broadened by analogy. Lethal self-defense ought to be seen as a legislatively trumpable common-law or statutory right, not a constitutional right. Let’s stick with judicial minimalism on unenumerated rights, and leave matters to the democratic process.

This is a plausible argument, but not one the Supreme Court has adopted. The Court has continued to endorse abortion rights and family rights. It has recognized rights to sexual autonomy and to refuse unwanted medical treatment. There’s little profit in reprising the whole unenumerated rights/Ninth Amendment/substantive due process debate here. My point is simply that the Court’s process for recognizing unenumerated rights by analogy remains active, and there is a strong case for using this process to recognize a right to medical self-defense.

And regardless of whether medical self-defense should be recognized as a constitutional right, the arguments given above should offer a strong moral case for the legislature’s respecting such a right. American legal traditions properly recognize people’s rights to protect their lives, even when that requires killing. The law ought to do the same when a dying person simply seeks an opportunity to risk slightly shortening her life in order to have the chance of substantially lengthening it.

I'd love to hear people's thoughts on this. One request, though: I realize — as the last three paragraphs make clear — that there's a hot and eminently legitimate debate about whether courts should recognize unenumerated constitutional rights; and the previous posts in this post chain have drawn many comments focused on that very debate. I'd like to ask that we set aside that general issue for the comments to this post and the coming ones, simply because it has already been dealt with in such detail (and already with some repetition) in the comments. Naturally, the specific issue of whether this unenumerated right should be recognized (among many other issues) remains entirely fair game.

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Medical Self-Defense and Bans on Payment for Organs:

As promised, I'm moving on to what is likely the most controversial part of my Medical Self-Defense article -- that bans on payment for organs violate patients' medical self-defense rights (which I argue are both constitutional rights and moral rights that legislatures ought to respect).

Here's the argument that the right is indeed implicated here, and that bans on payment for organs are therefore presumptively unconstitutional, at least unless the bans are the least burdensome means of avoiding very serious harms. In the next few days, I'll respond to some arguments that the bans are indeed necessary to avoid such harms.

To live, Olivia needs a kidney transplant. Though kidney dialysis is keeping her alive for now, each year on dialysis she faces a 6% risk of death: If Olivia is in her twenties, her expected lifespan on dialysis is 30 years less than her expected lifespan with a transplant.

But Olivia is one of the 67,000 people on the American kidney transplant waiting lists. (Twenty five thousand more wait for other organs.) The median wait for adult recipients added to the list in 2001-02 was over four years. Each year, only 6500 living Americans donate kidneys, and only 45% of the 26,000 usable cadaveric kidneys -- kidneys gathered from the bodies of people who die from accidents or other causes that leave their organs young and healthy -- are donated.

Nor should this shortage be surprising: Since 1984, “receiv[ing] or . . . transfer[ing] any human organ for valuable consideration for use in human transplantation” has been a federal felony. Price controls diminish supply. Setting the price at zero diminishes it dramatically.

Lack of compensation naturally makes living donors less likely to incur the pain, modest risk, lost time, and lost wages that accompany extraction of an organ. The relatives of the recently dead have less to lose tangibly from authorizing extraction of the decedent’s organs; but even they may be put off by what strikes many as a macabre idea, may refuse consent if they’re not positive what the decedent wanted, or may not want to discuss the matter in their time of grief. [Footnote: Similarly, people who don’t sign a donor card may be turned off for emotional reasons, though far less intense ones. The prospect of essentially getting a free modest life insurance policy for one’s relatives may be enough to help overcome such emotional objections.] The prospect of (say) $100,000 [for all their organs, to be used] for their children’s college education[,] may lead them to overcome these barriers. [Footnote: Many people, of course, wouldn’t sell a kidney during their lives, even if you offered them $100,000. But that’s not a problem for an organ market; even if only 0.01% of adult Americans are willing to sell an organ each year, that would still bring an extra 25,000 organs into the system every year -- likely enough to clear out the waiting list, when added to the increased number of available cadaveric organs.]

Some people do donate organs. Though living donations are almost always for relatives, friends, or other known recipients, a few living donors (1.5% of the total) and many next-of-kin of the recently dead donate to anonymous strangers.

Yet kindness to strangers is generally not as strong a motivation as the desire for financial reward, or a combined desire to help strangers and at the same time put money aside for your children’s education. [Footnote: The concern about the children’s education may be especially strong if the organ provision is made possible by the death of a parent who was the children’s main source of support, and the spouse is now facing raising the children alone.] We pay hospitals and surgeons well for their parts in the transplant. If we didn’t, there’d likely not be nearly enough transplant services provided, though many hospitals are charitable institutions and many doctors routinely donate their time to free medical care. Why should we expect organ suppliers to provide enough organs based solely on charity to strangers? We’d likely get far better results if we offered organ providers compensation -- or, more precisely, offered them the choice of keeping the compensation, forgoing it, donating it to a familiar cause of their choice (for instance, their church) rather than to a total stranger, or spending it on their children.

Olivia is little different from Alice. To defend their lives, both need medical assistance. If the government may not interfere with Alice’s getting this assistance, even in the service of protecting the life of a viable fetus, it shouldn’t be allowed to substantially restrict Olivia’s ability to get such assistance -- at least absent evidence that Olivia’s actions would cause grave harm that can’t be averted any other way. Limits on Sales as Substantial Burdens: So though the organ sales ban isn’t a total transplant ban, it is a substantial obstacle to people’s medical self-defense. It substantially reduces the number of available organs, and substantially increases the chance that the recipient will die before a matching organ is found.

Where most other constitutional rights are concerned, bans on using money (either from your bank account or from an insurance policy that you’ve bought) to help exercise a right are obviously substantial burdens on the right. Say a legislature let people privately educate their children, engage lawyers in their criminal cases, or get abortions -- but only if these services were provided free. Of course this payment ban would constitute a substantial burden on the underlying constitutional right: It would dramatically reduce the number of private schools, criminal defense lawyers, and abortion providers, and some people would thus be unable to exercise the right. Restrictions on paying money to speak have likewise been repeatedly struck down, because they burden speakers’ ability to effectively convey their message. And if a ban on paying for one scarce input into the exercise of a constitutional right (teachers’, lawyers’, doctors’, or authors’ time, or space for a political ad in a newspaper) substantially burdens the right, then a ban on another scarce input (providers’ organs) does as well.

A few such restrictions on paying money to exercise a right may be constitutional because there are very strong government interests justifying them. That was the Court’s reason for upholding some modest restraints on spending money related to candidate elections.

A few other restrictions may be constitutional when the right is aimed at promoting goals that are served only by noncommercial exercise of the right: Consider the Compulsory Process Clause right to subpoena witnesses, the Due Process Clause right to call willing witnesses in criminal cases, and the Lawrence v. Texas sexual autonomy right. [Footnote: Lawrence does protect purely casual noncommercial sex, but I think it does so because the law can’t distinguish such sex from emotionally significant sex.] I assume the law could ban paying witnesses or paying for sex on the grounds that such conduct tends not to advance the constitutional purpose of the rights -- procuring accurate testimony and helping develop emotional relationships. [Footnote: If I’m mistaken on this, then presumably the reason for upholding the bans on payment would be that there’s a very strong government interest justifying the ban.] Paid-for testimony and paid-for sex aren’t constitutionally valuable in the way that the unpaid conduct is.

But paid-for books, educations, legal counsel, abortions, and organs are constitutionally valuable, because they do serve the purposes of the underlying rights -- and more reliably than if these goods or services could only be provided for free. “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Relying solely on the benevolence of lawyers, doctors, teachers, or organ providers likewise offers little protection for our rights. So long as a ban on compensating organ providers keeps many patients from getting the organs they need to live, it constitutes a substantial burden on the right to medical self-defense. Limits on the Right: The self-defense right, like other rights, isn’t absolute. Modest regulations (informed consent requirements, waiting periods, and the like) that don’t substantially interfere with the right should be permissible. The right may well be limited to situations where self-defense is necessary to avoid threat of death, or perhaps of very serious injury. The right is inherently limited to cases where it doesn’t directly infringe the rights of others who are not threatening the person’s life.

Moreover, the self-defense right may be limitable in other ways, if the harm from allowing it is too great; in the lethal self-defense context, for instance, this is the foundation for many pro-gun-control arguments. [Footnote: I’m skeptical of these arguments on empirical grounds, and I think it should take a great deal of harm to justify interfering with people’s right to defend themselves, but I agree that in principle the right to possess the tools for lethal self-defense may be limitable. To give an example, felons may need to defend themselves at least as much as nonfelons; yet restrictions on felons’ (especially violent felons’) gun ownership are constitutional and morally permissible.] Likewise, the D.C. Circuit in Abigail Alliance remanded the case for the district court to hear arguments about whether the FDA rules were narrowly tailored to some compelling government interest.

Yet, as the abortion-as-self-defense and lethal self-defense examples show, self-defense ought only be limitable for the most pressing reasons. Protecting a viable fetus isn’t enough. Protecting the life of an animal isn’t enough. Protecting the life of an attacker, even one who’s not morally culpable (for instance, because he’s insane) isn’t enough. These reasons can’t justify denying people the right to protect their own lives. And even if there is a strong enough reason for restricting self-defense rights, the restriction ought to be narrowly limited so as to minimize the burden on the rights.

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Payments for Organs, Medical Self-Defense, and the Risk of Organ Robbery:

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the risk of organ robbery; in future posts, I deal with arguments that banning payment is needed to keep rich patients from "jumping the queue," to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

Throughout all this, remember: The constitutional, moral, and policy question isn't just whether some possible harm may flow from payment for organs, but rather whether avoiding the harm is reason enough to interfere with people's right to protect their own lives, and to support a system under which thousands of people die each year -- the best source I could find reported 8000 deaths -- for lack of an available organ.

The risk of organ robbery, for instance, cannot justify the ban on compensation for organs. Consider by analogy the risk that some will mask murder by falsely pleading self-defense. The risk might justify rules requiring that defendants prove self-defense by a preponderance of the evidence, though such rules burden people’s legitimate self-defense rights by raising the risk that legitimate defenders will be erroneously convicted. But the risk doesn’t justify flatly rejecting self-defense, even though such a rejection may more efficiently deter and punish murders; courts must still resolve self-defense claims case by case. Some sacrifice of the interest in preventing murder of people who are falsely said to be attackers must yield to the constitutional and moral interest in preventing murder (or rape or serious injury) of people who are truly being attacked.

The same preference for case-by-case identification of abuse rather than blanket prohibition of a form of self-defense should apply to the similar argument that paying for organs will prompt murder of people for their organs. There’s no need to flatly ban compensation, when regulation of organ transfer could do a very good job, for instance if the law required that (1) all organs be extracted by a well-established hospital, (2) a living organ provider, or the relatives of a deceased provider, approve the provision by signing a document in front of some official, (3) the provider’s blood sample be taken and securely stored so the organs’ DNA can be matched against the provider’s, and (4) all organ transfers be tracked, and done among well-established institutions. [Footnote: The law might also bar importation of organs from countries where these rules aren’t followed. Allowing a regulated organ market may also dry up the international black market in organs, which exists largely because dying people can’t buy organs legally.] And if some rare transplant-related murders still happen despite this, that isn’t reason enough to maintain a system that causes 8000 deaths a year through lack of available organs.

[Footnote: A body’s organs, put together, are unlikely to be worth more than $100,000. Only very rare American doctors would risks punishment for conspiracy to murder for $100,000, especially when organs are closely tracked. Heirs, to whom $100,000 might be worth more, might still kill a spouse, parent, or child to sell off the organs. But this is just a rare cousin of the existing temptation to kill a relative to collect insurance or inherit property, yet we don’t ban life insurance or inheritance, relying instead on the criminal law to deter the murder (especially because the greedy relatives know they’ll be among the first suspects).... ([T]he average American life insurance policyholder has about $150,000 in coverage); ... the median net worth of American families in which the family head is 45 or older is over $150,000.) Even a risk of providing an incentive to murder isn’t enough to justify interfering with families’ economic well-being—and neither should it be enough to interfere with organ recipients’ ability to protect their lives.

The risk that payment for organs will give some an incentive to commit suicide so as to leave money to their families, is likewise just a rare analog of the incentive provided by life insurance. Many life insurance policies cover suicide, especially when the suicide is more than two years after the policy is bought.]

53 Comments

Payments for Organs, Medical Self-Defense, and the Risk of the Rich Buying Up All Available Organs:

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the arguments that banning payment is needed to keep rich patients from "jumping the queue." I've already discussed the risk of organ robbery; in future posts, I deal with the arguments that banning payment is needed to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

As before, please recall that the footnotes are available here, so if you wonder where I got some of the data, you might check there first.

[C]onsider the concern that allowing payment for organs would let rich patients buy up all available organs, and leave poorer patients without the chance of a transplant. This result can similarly be avoided with regulation rather than prohibition.

Organ transplants are expensive. They are already available only to those who have health insurance, government-provided health care, or their own funds. All people, rich or poor, who are up for transplants thus already have some health care funders paying for their care.

And long-term care used while transplants are unavailable is even more expensive than transplants; for kidneys, transplants cost on average about $100,000 less than long-term dialysis. Health care funders would save money by paying up to $100,000 per kidney, again whether the patient is rich or poor. This means we can still maintain the current need-based system, but just have the health care funder for each person who’s next in line pay for the person’s new organ; the result will likely be savings for the funders, a greater pool of available organs, and no extra advantage for the rich.

Even if for some organ, transplants wouldn’t save money, and the health care funder would have to pay $30,000 per organ to compensate providers, this will hardly be a huge burden to absorb. Each year, about 15,000 Americans are added to the nonkidney transplant waiting lists; even if that number doubles once organs becomes more available, that would still only constitute .012% of the 250 million Americans with health insurance. If each organ cost $30,000, and this price wasn’t offset by any savings in alternative treatment costs, this would mean an increase in insurance costs of $4 per year per insured.

The “rich outbidding others” concern only arises if (1) the rich or their insurers pay so much that other health care funders can’t keep up, and (2) the other funders’ payments don’t suffice to make enough organs available for all patients. Even if we think this is likely -- if we think the rich would pay $200,000 per kidney, other health care funders wouldn’t pay more than $100,000, and this payment wouldn’t yield enough organs for everyone -- this only supports capping payments at the level that all funders would pay, likely the level at which they’ll still be saving money by getting an organ instead of paying for long-term dialysis.

Of course, even the lesser burden created by a payment cap may still be substantial, if the capped payment yields fewer organs and thus leaves some extra people on the waiting list. And this burden may be improper if we conclude that preventing inequality isn’t reason enough to interfere with medical self-defense. Where other matters -- private schooling, hiring a criminal lawyer, most forms of free speech, hiring of guards, spending money on highest-quality medical care -- are concerned, we generally don’t have the government impose such payment caps, despite egalitarian concerns.

Part of the reason for this is a general respect for property rights, notwithstanding the inequality they necessarily cause, and the view that substantive rights (to educate one’s children, speak, get an abortion, or hire a lawyer) include the right to spend money to exercise the right. And part is the fact that there’ll be much less provision of valuable services, such as education, legal assistance, or medical care, if those services must be provided subject to a price cap. Equality achieved by leveling everyone down to the same low protection is often, at least in the organ transplant context, the equality of the graveyard.

Nonetheless, perhaps I’m wrong: Perhaps the interest in keeping the rich from getting preferential access to organs is strong enough to trump the medical self-defense right, and would therefore justify barring rich patients from paying extra for such organs. But this equality interest can justify only a cap on payments to organ providers, not the much more burdensome total ban on such payments.

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Payment for Organs, Medical Self-Defense, and the Risk that the Poor Would Be Unduly Pressured Into Selling Organs:

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the argument that banning payment is needed to keep poor providers from being improperly exploited. In earlier posts, I've discussed the risk of organ robbery, and the argument that banning payment is needed to keep rich patients from "jumping the queue." In future posts, I deal with the argument that organ payment bans are needed to avoid supposedly inherently improper "commodification" of the human body, and with some other arguments that have come up in the comments. As before, please recall that the footnotes are available here, so if you wonder where I got some of the data, you might check there first.

Note also that this argument is a small part of what must be at most a 30-page essay; I thus can't get into it in too much detail. At the same time, I may have room to add a few paragraphs here or there, so if you think there are important items that need adding, I'd love to hear about that.

Some argue that allowing organ sales would unduly pressure poor providers to put their health and their lives at risk. Yet the risk is modest. Giving a kidney carries a 0.03% risk of death or irreversible coma, a less than 2% risk of complications, and some unknown but not high increase in susceptibility to kidney disease. Giving part of a liver (livers regenerate, so giving part is possible) has been associated with a 0.25% incidence of provider death, plus some risk of nonfatal complications. Marrow donation is safe, though temporarily painful.

Such risks may justify mandatory counseling, waiting periods, and requirements that part of the compensation include insurance against medical complications. [Footnote: These regulations may slightly increase the cost of organs, but likely not enough to substantially burden recipients’ self-defense rights.] But they surely don’t justify the current ban, which applies even to compensation for cadaveric organs. [Footnote: Allowing compensation for cadaveric organs would actually help protect the health of living donors, because it would make living donations less necessary.] And in my view they are too small to justify even a ban limited to organs provided by the living. If someone thinks the prospect of making tens of thousands of dollars is worth a small health risk, the government’s interest in protecting him against being overtempted by the money shouldn’t suffice to trump the medical self-defense rights I’ve discussed.

Yet even if I’m wrong, recognizing that the organ sales ban limits patients’ rights should invalidate such a serious burden on their rights if the law can prevent the harm through lighter burdens. For instance, the law might exclude living providers who we think are unduly tempted by a $30,000 per-organ payment -- say, the very poor (perhaps they’re too desperate), young adults aged 18 to 24 (perhps they’re too present-centered), or poor parents of minor children (perhaps they may feel unduly pressured to risk their health for the sake of feeding their family). [Footnote: Even under the current system, there’s often strong family pressure on people to donate organs for relatives (even ones to whom the provider might not feel close). This isn’t identical to the pressure of an offered $30,000, but in many ways it might be stronger. Allowing compensation for organs will diminish this pressure, as more non-relative organs become available.] Better a small decrease in potential organ providers than the large decrease caused by today’s total compensation ban. And even these exclusions may leave enough providers to supply the medical self-defense needs of all Americans whose organs are failing.

True, some might balk at such limitations. Aren’t 21-year-olds adult enough that we shouldn’t treat them as second-class citizens who can’t make intelligent choices? Why should very poor people, or people who are trying to improve their children’s lives, be denied a money-making option that richer people have -- and be denied it precisely because the money is especially valuable to the poor and to parents?

But if such objections are right, they only show the problem with a paternalistic system that interferes with recipients’ self-defense rights and providers’ freedom of choice. The response to these objections should be to let all adult, competent would-be organ providers decide whether to sell their organs -- as they now have the right to decide whether to give the organs away -- not to bar everyone from doing so.

48 Comments

Commercial Fishing and Paid Organ Provision:

I'm revising my Medical Self-Defense article, and adding some statistics that I should have added before. I had already pointed out that the risk of providing organs is modest:

Giving a kidney carries a 0.03% risk of death or irreversible coma, a less than 2% risk of complications, and some unknown but not high increase in susceptibility to kidney disease. Giving part of a liver (livers regenerate, so giving part is possible) has been associated with a 0.25% incidence of provider death, plus some risk of nonfatal complications. Marrow donation is safe, though temporarily painful.

But I hadn't mentioned the specific occupational danger statistics, which report (see page 13 of this PDF) that working in fishing or logging for a year carries a 0.1% risk of death from occupational hazards. Working for a year as a truck driver or a delivery driver carries a 0.03% risk of death.

So let's think again about the argument that organ sales should be banned because allowing organ sales would unduly pressure poor providers to put their health and their lives at risk. We let people become professional fishermen or loggers, and we'd consider a ban on those occupations to be no service to the poor. Yet these occupations, with their modest return on investment and risk, likely appeal especially to the poor, and thus may (by analogy to the organ argument) unduly pressure poor workers to put their lives at risk.

Why not let people run a comparable risk (somewhat higher for liver providers, somewhat lower for kidney providers, though perhaps offset by the unknown extra risk of kidney disease in the future) to provide organs? Why protect people from their own supposedly foolishly life-threatening decisions when it comes to providing organs, and not when it comes to providing their labor?

Or consider this hypothetical: A fisherman grows tired of working in this dangerous occupation. Each year he saves only (say) $5000 per year, given that his yearly income must be offset by the usual yearly expenses for housing, food, and so on; not a good deal, he concludes. Instead, he'd much prefer to sell a kidney, put the $30,000 aside as savings (or spend it on education for himself or his children) and take a desk job that pays somewhat less than his fishing job but that is quite safe — oh, and incidentally save someone's life in the process.

"I'll probably decrease my risk of death, and I'll certainly save myself a great deal of physical discomfort and make more money," he says. "No, no!," the critics of compensation for organs say. "We must protect you from the risk that you will be unduly pressured into this unwise transaction by the prospect of economic gain. If you simply wanted to stay in a dangerous business like fishing, you'd be free to choose that; but when you try to provide a kidney for money, we have to step in to save you." How can that possibly make sense?

I realize that this particular argument doesn't confront some of the other arguments against compensation for organs, but I've dealt with them (or will deal with them) in other posts. Here I just want to confront the "protect poor pressured providers" argument.

32 Comments

Ducking Responsibility:

One of the main commenters who is defending the organ compensation ban posted this item:

[W]e're not "letting them die", anymore than we are "letting die" all the people who die due to DWIs or gun violence because we decide not to completely ban cars or guns. Society is not responsible for those deaths. The illness or accident which damaged their kidneys or hearts or lungs is responsible for the death.

Good heavens — how can this possibly be right? The law makes paying for organs into a federal felony. Everyone involved in the process can be sent to prison. It isn't just that the law steps aside and fails to ban some dangerous-but-useful tool. The law affirmatively steps in to prohibit the main tool that people use to get others to help them (especially when the help comes at some expense to the helper): the payment of compensation.

How can those that back the law then refuse responsibility for this? Perhaps the bans can be defended on the grounds that there's a very important reason behind them, important enough to justify letting people die for want of organs. (I respond to such arguments elsewhere in this chain of posts.) But to say "it's not the law's fault, it's the fault of the disease" makes no moral sense.

If you want analogies, there are plenty. Say the law bars anyone from paying for life-saving abortions; predictably, fewer doctors choose to perform the abortions; as a result, a woman dies because no doctor is available. Would we say that the law isn't responsible for the death, and only the underlying health condition is responsible for the death? We might say that if the matter was simply the government's not paying for such abortions, but not when the government steps in to prohibit all private payment.

Likewise, say the law makes it a federal felony to pay for bodyguard services. A woman who had gotten death threats and who would have wanted to hire a bodyguard gets killed. Would we say that the law isn't responsible for the death, and only the killer is responsible for the death? (I mean, as the commenter meant, morally responsible and not legally responsible via the tort system.) Of course not. Yet given that we see how banning compensation for life-saving actions jeopardizes people's lives, how can we refuse to see that when the life-saving action is the provision of an organ?

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Compensation for Organs and Organ Quality:

Some readers raised this issue, which I had relegated to a footnote in my article, but which I thought I'd post in response:

Some have argued that allowing organ sales wouldn’t substantially improve transplant patients’ prospects, because it would decrease the quality of organs available for transplant by attracting providers -- such as intravenous drug users -- who are both especially in need of money and especially likely to have certain diseases. Yet this concern can be easily dealt with without a sales ban. Diseases can generally be screened for, which wasn’t true decades ago, when a similar concern drove blood banks to avoid paid providers. And they would in any case have to be screened for, since even charitable donors’ organs may be diseased.

Blood banks, including German blood banks that routinely buy blood, operate well with screening. Sperm banks and fertility clinics buy and test sperm and ova; the same approach should work for organs, too. And if compensation generates more organs, doctors can improve average organ quality by being more selective about the organs they use, and by setting aside organs that are not diseased but also not optimal for transplanting.

Note also one item I didn't mention in the footnote: Recall that people who are waiting for kindey transplants have a 6% death rate per year, or over 20% over the duration of the current waiting list. That's a lot of people dying for lack of organs. If compensation yields more organs, and cuts even a year off the waiting list, and at the same time (say) 0.1% of all extra organs are infected in ways that can't be caught by screening (likely a substantial overestimate), that's still a huge saving of life over the current system.

Tomorrow: A brief response to Leon Kass and other people who claim that paying for organs is just plain wrong.

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Medical Self-Defense, Compensation for Organ Transplants, and the Commodification Objection:

Here's my attempt to deal with the "commodification" objection to compensation for organ transplants. I'd love to beef it up, in future versions of the article (if there are some) even if I lack the space in this version. Any suggestions?

What then about the argument that compensation is just inherently wrong? “The human body and its parts cannot be the subject of commercial transactions,” the argument goes. Like “a desired legal verdict, a Pulitzer Prize, or a child,” organs are goods that “have a meaning and value that places them outside the market.” In the words of leading conservative bioethicist Leon Kass (for three years the chair of the President’s Council on Bioethics), “the human body especially belongs in that category of things that defy or resist commensuration -- like love or friendship or life itself”:

[C]ommodification by conventional commensuration [through market exchange] always risks the homogenization of worth, and even the homogenization of things .... In many transactions, we do not mind or suffer or even notice. Yet the human soul finally rebels against the principle, whenever it strikes closest to home....

We surpass all defensible limits of such conventional commodification when we contemplate making the convention-maker -- the human being -- just another one of the commensurables. Selling our bodies, we come perilously close to selling out our souls. There is even a danger in contemplating such a prospect -- for if we come to think about ourselves like pork bellies, pork bellies we will become.

Yet, once we look past the figures of speech to see what is really being asserted, this analysis is unpersuasive. Love, friendship, and prizes can’t properly be gotten for money because paid-for love, friendship, and prizes aren’t “love,” “friendship,” and “prizes” as we define the terms. A paid-for kidney is a kidney, just as a paid-for transplant operation is a transplant operation. It has the same meaning and human worth regardless of whether it’s paid for -- it can save a human life.

Nor is compensation for providing kidneys morally similar to selling “the human being.” There’s no despotic control over another human, as with slavery. There’s no risk of a harm to a human who’s too young to consent, as with sales of children. When an organ is taken from a cadaver, there’s no soul to be sold out. And when an organ is provided by a living person, the organ is being provided, not the soul; there’s no selling out of the soul in compensation for the organs, just as there’s no giving away the soul in donating organs. We are no more pork bellies when organs are transplanted (whether for money or otherwise) than the paid transplant surgeon is a butcher.

Of course, such responses themselves have limited persuasiveness to those firmly on the other side. The anticommodification claim may be at bottom a philosophical and spiritual axiom -- a premise for an argument rather than a conclusion. Leon Kass’s soul rebels against payment for transplants. My soul rebels against price controls that limit the supply of transplantable organs and thus lead people to die needlessly. When the test is soul rebellion, argument only goes so far.

Yet the presence of a constitutional and moral right ought to resolve this impasse. Something more demonstrably compelling than Professor Kass’s conclusory assertions must be required to substantially burden such a right. Before limiting people’s abortion-as-self-defense rights or lethal self-defense rights, we would demand more than just philosophical claims supporting a culture of life so unwavering that it never lets people use deadly force against viable fetuses or born humans. Likewise, before limiting medical self-defense rights, we should need more than Professor Kass’s view of the soul.

26 Comments

Medical Self-Defense and the Risk that Compensation for Organs Will Drive Away Volunteers:

One of the commenters asks:

Finally, any guess as to how many of those healthy organs donated benevolently will not be available when the pricing game starts? Believe it or not, everyone and their descendents is NOT motivated by money. Look at how many community women stopped volunteering -- the work that truly built American character before the market-inclined came into the game -- once there was some expectation people could be paid for such services. Sure you'll pick up some donors in it for the money; how many of the "volunteers" -- in it for the end result, not the pay -- will you lose?

I had a section in an earlier draft addressing this argument, but I had to cut it for space reasons (though I included a little bit of it in other places). Here's what I said:

Some have also hypothesized a somewhat different altruism effect: that offering money for organs might alienate donors who would give the organs for free, and might therefore decrease (or not substantially increase) the aggregate donor supply. One can imagine some such mechanisms: If some people believe (whether rightly or wrongly) that an organ market is immoral or disgusting, they may refuse to participate. If some people start thinking of the transaction in financial terms, they may conclude that $30,000 is too low a price for parts of their bodies, even if they would have donated the body parts for free.

Likewise, some people might be turned off from the loss of the emotional benefit that accompanies a pure selfless act. Or some people might donate organs under the current system because they seek the emotional reward that comes from doing something that can only be done by the charitably minded. Once organ provision becomes the sort of thing that is routinely done for money, they might no longer be interested in doing it.

Yet while one can imagine such reactions, my sense is that they’d be quite rare. To begin with, only about 1.5% of all U.S. living donor transplants -- in 2005, 89 transplants in total -- are purely unrelated anonymous donations. Even if all these unrelated anonymous donors become alienated by the prospect that others are being compensated for providing organs, and aren’t mollified by the prospect of refusing compensation or donating the compensation to their favorite charity, this will be a very small loss to the organ pool. The remaining 98.5% are either donations to relatives, targeted donations (presumably mostly to acquaintances), or “paired exchange” donations in which the recipient’s relative or acquaintance provides an organ in exchange to the donor’s relative or acquaintance. These donors, I suspect, will care primarily about the welfare of the transplant beneficiary, and won’t refuse to donate just because compensation is offered. The cadaveric organs do often go to strangers. But how likely is it that a next-of-kin who would be willing to donate the decedent’s organs under a pure donation system would instead refuse when offered money (even given the option of declining the money, or sending it to his favorite charity)?

On the other hand, the opposite reaction -- a financial incentive doing what financial incentives usually do, which is stimulated the rewarded conduct -- should, I suspect, sway quite a few people. We see some evidence of this in the supply of eggs to infertile couples: In America, where women routinely get $5000 to $15,000 for such eggs, the eggs are generally available; in England, where the compensation is capped at £250, there is a years-long waiting list; in Australia, where payment for eggs is banned, there is a five-year-long list. We also see plenty of evidence of this in our daily experience with the overwhelming majority of other goods and services, where offering money will get you much better results than asking for charity.

Moreover, the offer of money may easily be presented in ways that harness charitable people’s charitable attitudes. Providing your (or your recently deceased relative’s) kidney for money, after all, saves a person’s life just as much as donating the kidney would; and then, if you have strong charitable impulses, you can just take that money and give it to your church, or your favorite charity.

The recipient is no worse off because you took the money. (Under an organ market system, the cost of the organ would surely be paid by private or government insurance, just as the much greater cost of the other inputs into the transplant -- doctor time, hospital space, pharmaceuticals and surgical supplies -- is now paid.) And if you are charitably minded, you can just take the money and give it to your church, or your favorite charity, or if you prefer some fund that will support organ transplants for the poor. You get to feel good about two things, the saving of a life and the donation of the proceeds, rather than just one.

What’s more, many genuinely altruistic people understandably feel that their charity should begin at home. A father’s death in an accident, which makes the organ donation possible, might at the same time strip away his wife’s and children’s main source of financial support. Getting money for the organs and using it for the children’s benefit will likely seem far more appealing -- even if the mother is generally charitably inclined -- than just giving the organs away.

This leaves one sort of person who might still be turned off, despite the option of declining payment or routing the payment to his favorite cause: someone who is deeply attached to the concept of doing the sort of thing that cannot be done for compensation. Note that this person isn’t the hyper-altruist who just wants to provide an organ to save a stranger’s life; he can still do that if he gets paid. Nor is it the hyper-altruist who just wants to give the organ free; he can still do that by forgoing compensation. Rather, it’s someone who won’t want to save the stranger’s life if such lifesaving is also done by others for compensation.

Yet how common are such people likely to be, compared to those who will see an offer of payment as an incentive? Consider a thought experiment: Imagine a requirement that doctors who do organ transplants do them for free, or not at all. Do we expect that such a requirement would on balance increase the number of doctors willing to perform such operations, since some doctors will be thrilled to do something that can only be done by the charitably minded? Would we say, “Sure, some doctors won’t want to invest their time and effort with no compensation, but think of how many more doctors would want to perform such a public service”? Or would we expect that counting on a combination of incentives and conventional altruism (in which some doctors may contribute their time and effort while forgoing compensation ) is a much surer bet than counting on pure altruism alone?

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Does Donating a Kidney Increase Susceptibility to Serious Kidney Disease That Would Itself Require a Transplant?

It turns out that the answer, somewhat to my surprise, seems to be "no." (I had thought there would be some such risk.) See Mary D. Ellison et al., Living Kidney Donors in Need of Kidney Transplants: A Report from Organ Procur. & Transp. Net., 74 Transplantation 1349 (2002) (noting that the best current estimates of the risk of kidney donors’ eventually developing end-stage renal disease “approximate[] the . . . adjusted incident rate for end-stage renal disease in the general U.S. population”); Margaret J. Bia et al., Evaluation of Living Renal Donors, 60 Transplantation 322, 326 (1995) (same).

I stress "seems to," because even though we do have decades of data, the studies have some understandable limitations. But the studies do suggest that there is no such elevated risk, and in any event it appears that even if there is some elevated risk that the studies don't catch, it's unlikely to be very high.

I'll update my article draft accordingly, but since the issue had come up in my posts and the comments to those posts, I'd note it. Recall that transplant operations do involve a roughly 0.03% chance of relatively prompt donor death, and a 2% or less chance of serious complications.

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Be Careful Believing Your Own Metaphors:

I've cautioned students against using metaphors; though they make writing more vivid, and sometimes more persuasive, they often obscure more than they reveal. Part of the problem is that they are literally false -- if they were true, they wouldn't be metaphors. Sometimes the literal falsehood reveals a deeper truth, but sometimes it's just plain false.

A case in point, from the debate over organ markets: I've often run into the argument that "We don't let prostitutes sell their bodies, so we shouldn't let people sell body parts." (For a print example, see Margaret Engel, Va. Doctor Plans Company to Arrange Sale of Human Kidneys, Wash. Post, Sept. 19, 1983, A9, quoting then-Representative Al Gore.) Sounds logical, no?

Except that "selling your body" is a metaphor. Prostitution doesn't actually involve sale of the body as a good. Rather, it involves the sale of services that use the body.

No problem, some might say; that's obviously implied by the phrase. But if we replace the literally false phrase with the literally accurate one -- "We don't let prostitutes sell services that use their bodies, so we shouldn't let people sell body parts" -- we notice something wrong with the argument: Prostitution is actually the exception rather than the rule when it comes to selling services using one's body. We often let people sell services that use their bodies; consider, among many others, people who work as furniture movers, nonsexual masseurs, non-sexual models, or professional athletes.

Of course, now that we're replacing false descriptions with accurate ones, we can clarify things further in a way that properly describes what's going on with bans on prostitution: "We don't let prostitutes sell sexual services, so we shouldn't let people sell body parts."

But once we've clarified things, we see that the analogy is entirely inapt: The problem with prostitution has little to do with commercialization of the body as such, and everything to do with commercialization of a specific kind of bodily services (sexual services). This is why being paid to use one’s hands to massage someone’s back is legal even though being paid to use the same hands to massage someone’s genitals is a crime. And commercialization of sexual services has nothing at all to do with organ transplants.

Now of course this doesn't rebut the various other arguments against compensation for organs (though I've tried to rebut them in other posts, linked to below). But it does, I think, rebut this argument. And it illustrates the importance of (1) looking beyond the metaphors to the reality that they supposedly portray, and (2) using metaphors only when one has assured oneself that the metaphor (despite its literal falsehood) sufficiently matches the reality.

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Professor Robert Nagel Criticizes My Medical Self-Defense Article,

in the Weekly Standard. I like the piece, and I'm delighted that Professor Nagel thought my work worthy of public disagreement.

Naturaly, I don't agree with the article, but that's because I don't share its minimalist view of judicial authority. (I say minimalist because Professor Nagel is criticizing not only unenumerated rights — apparently including a right to abortion as self-defense — but also enumerated ones: He criticizes, for instance, the Court's cases upholding protection for "vulgar speech" or for flag desecration.) As I noted in my article, those who do take such a view would understandably reject my constitutional position, though I hope they can still agree that legislatures ought to enact my proposals.

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"Singapore to Compensate Kidney Donors":

BioEdge reports:

Singapore is to allow compensation for kidney transplants and for eggs. A government proposal has been approved by a bioethics committee and legislation will be introduced early next year. The committee declared that reimbursement for kidney donation was acceptable as long as it is not "an undue inducement, nor amounting to organ trading".

What exactly this means for kidneys is difficult to fathom. According to the BMJ, a sum of S$10,000 [currently about $6500 US -EV] was mentioned. According to the Straits Times, the health minister, Mr Khaw Boon Wan, mentioned "at least a five-figure sum, possibly even six-figure" as appropriate reimbursement. This would include expenses, such as transport and medical costs, as well as loss of earnings. Also, the donor should be covered for follow-up medical costs and higher insurance premiums as a result of losing a kidney....

The committee has recommended that the reimbursement scheme begin with donors who are Singapore citizens and permanent residents....

I'm not sure that sums like these are adequate or fair, but it sounds to me like a step in the right direction. For my thinking on the subject, see this chain of posts, especially those starting with "Medical Self-Defense and Bans on Payment for Organs."

UPDATE: James Wimberley (at The Reality-Based Community) blogs about Spain's way of increasing organ donations, which seems to focus on internal hospital procedures. If it works, that's great; but I'm pretty sure it wouldn't be enough to clear out the waiting lists, so compensation would still be needed -- and eminently justified -- on top of the Spanish solution. Thanks to Victor Steinbok for the pointer.

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