The Magazine

Conservative Judicial Activism?

Inventing a constitutional right to "medical self-defense."

Feb 5, 2007, Vol. 12, No. 20 • By ROBERT F. NAGEL
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Do you have a bright idea (albeit a controversial one) that you would like to see implemented as national policy? Would you prefer to achieve this without the inconvenience of having to persuade Congress and the president, let alone the American people? Well, here's how to do it.

First, go to law school and afterwards clerk for a justice of the Supreme Court. Then become a professor at a leading law school. Earn the respect of other legal scholars by writing academic articles and books. Gain broader visibility by publishing op-ed pieces and operating a blog. Next, write up your bright idea as an article for an influential law review and get an important think tank to invite prominent legal scholars to discuss your article. Then, wait for some litigators to pick up your idea and hope the Supreme Court will eventually impose it as a requirement of constitutional law. It doesn't always work, but--at least as compared with the options available to most people--it is worth a shot.

This strategy has often been used by left-wing law professors and even by some conservatives. However, with the Court increasingly dominated by the likes of Antonin Scalia and John Roberts, who claim to be committed to judicial restraint, it might seem that clever constitutional arguments are no longer a likely way to influence national policies. UCLA's Eugene Volokh, one of the nation's most prolific and insightful young legal scholars, doesn't think so. And, sadly, he may be right.

Volokh's bright but controversial idea--which is soon to be published in the Harvard Law Review and was recently presented at the American Enterprise Institute--is that there is a constitutional right to what he terms "medical self-defense." The basic concept is that the government may not throw substantial obstacles in the path of medical treatments that might protect against death or serious harm. If accepted by the Court, this would mean that the government could not prevent a sick individual from using an experimental drug not yet deemed effective by the Food and Drug Administration. It would also invalidate the federal ban on payments for organ donations. And, of course, it could be applied in any number of other circumstances, limited only by the inventiveness of lawyers and the imagination of judges.

Volokh has a number of reasons for thinking that the Court might be inclined to go down this road. For one, the redoubtable Justice Scalia himself seems attracted to the idea that the right to self-defense (one of Volokh's sources for a right to medical self-defense) has constitutional status. For another, the prestigious Court of Appeals for the District of Columbia Circuit has already said that in some circumstances there is a constitutional right to use unapproved drugs. Among those voting for that decision was Judge Douglas Ginsburg, whose right-leaning credentials are attested to by the fact that President Reagan once tried to put him on the Supreme Court. Moreover, the litigation that led to the decision was "spearheaded" (as Volokh puts it) by the Washington Legal Foundation, whose advisory board includes such conservative luminaries as Ted Olson and Ken Starr.

Volokh's hopefulness is based on a deeper consideration as well. He thinks that conservative jurists object to the creation of new constitutional rights when those rights are based on general notions of individual autonomy or, as the Court phrased it in cases protecting abortion and homosexual sodomy, on the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Volokh argues that the right to medical self-defense is based on much tighter considerations. Specifically, he points to the Court's decades-long recognition of the right of a woman to terminate her pregnancy, even after the fetus is viable, if her life or health would be endangered by giving birth. He also points to the widespread political acceptance of a right to use lethal self-defense against attackers.

Thus, the proposed right to medical self-defense is said to be based not on unmoored philosophical speculation, but on entrenched political traditions and the judicial precedents that recognize these traditions. Volokh's proposal, therefore, tests whether an increasingly conservative Court might be able to use constitutional interpretation in a creative but constrained and legally justifiable way. If activism is the judicial creation of new rights, Volokh's larger, but implicit, project is to demonstrate that there is a form of conservative activism that is legitimate.