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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One thing that is lost, as can be seen in Volokh's article itself ("Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs," Harvard Law Review, Vol. 120, April 2007) is a distinctive concept of law and the judicial function. This is partly because no one thinks that far-reaching new rights can be enforced without exception or qualification. Consequently, the standard judicial position is that the government can restrict rights if it has, as Volokh says, "a very good reason to substantially burden the right" and if the restriction is "as narrow as possible." These formulations, as familiar as they are to practicing lawyers, require that judges assess the importance of public purposes and the efficacy of various methods for achieving those purposes. That is, they require that judges make quintessentially legislative judgments.

The upshot is that Volokh's idea would result in what amounts to judicial regulation of the details of medical care and research. Volokh, for example, notes that a right to use experimental drugs might interfere with randomized drug studies because a potential subject could get the drug without entering any study. He admits that this might be a strong enough public concern to justify some limits on the right to medical self-defense but rather casually suggests that courts should permit this purpose to trump the right only when there is an inadequate number of experimental subjects for a specific study.

The Harvard article is littered with similar invitations for judges to make legislative judgments. Invalidation of the ban on compensation for organs might encourage the murder of people for their organs, but this risk would justify only rules concerning such matters as where extractions can take place and how consent is obtained. Similarly, the possibility that rich people would buy the available organs can be countered with a rule capping payments at the level that "all funders will pay." The danger that individuals might risk their health because of financial pressure to sell organs can be met, says Volokh, with measures like mandatory counseling and waiting periods. The reasonableness of all these rules would have to be assessed, of course, by judges. Those who think such judicial oversight would be beneficial should ask themselves whether it has been politically healthy for the Supreme Court to oversee all aspects of abortion policy for almost four decades now.

Needless to say, in modern times interventionist courts have not only supervised the details of public policy. They have also taken it upon themselves to make significant determinations about the moral climate of the nation and its various communities. Local governments may not, the Court has decreed repeatedly, restrict vulgar speech in an effort to maintain suitable standards of public discourse. Neither localities nor the Congress may seek to protect a minimal sense of nationhood by prohibiting flag desecration. Creating a society that respects human life is not important enough to justify restraints on abortion in the first two trimesters of pregnancy. It is possible either to agree or disagree with such judgments and still doubt that judges and lawyers, rather than the American people, should decide fundamental questions about the kind of society we should be.

It is on these grounds that the medical self-defense proposal is most disappointing. Volokh does recognize that serious thinkers, such as Leon Kass, have argued that compensation for body parts "is just inherently wrong" because the human body should not be made the subject of commercial transactions. Volokh dispenses with this argument in four brief paragraphs that descend quickly into sarcasm. He writes, "Leon Kass's soul rebels against payment for transplants. My soul rebels against price controls that . . . lead people to die needlessly." How to resolve the conflict between two such spiritual intuitions? Here is where the constitutional status of the right to medical self-defense is so useful as a trump. "Something more demonstrably compelling than Professor Kass's conclusory assertions must be required to substantially burden [a constitutional] right."

This is how lawyers have come to dominate moral debate in the United States. They elevate their preferences to constitutional rights and then claim that profound moral beliefs held by others are inadequate to justify restrictions on the newly created rights. You see, rights cannot be abridged except for highly convincing reasons, and judges (enlightened by the arguments of litigators and law professors) will decide what is convincing.

Creating a constitutional right to medical self-defense would be a definitive sign that the conservatives who sit on the Supreme Court are not serious about establishing a saner, less imperial role for the judiciary--indeed, that just about nobody in the legal profession is. This would be further evidence, if more is needed, that if non-lawyers want to retake control over public decision-making, they should not expect much help from members of the profession whose inordinate power is based on the modern conventions of constitutional argument.

Robert F. Nagel teaches law at the University of Colorado and is working on a book on the persistence of judicial imperialism.