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121 Harv. L. Rev. F. 1 (2007-2008)

handle is hein.journals/forharoc121 and id is 1 raw text is: UNENUMERATED RIGHTS AND THE LIMITS OF ANALOGY: A CRITIQUE OF THE RIGHT TO MEDICAL SELF-DEFENSE 0. Carter Snead* Responding to Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. 1813 (2007). Professor Volokh has produced a characteristically thoughtful, pro- vocative, and well-argued case for a constitutional right to medical self-defense that would presumptively allow terminally ill patients ac- cess to unapproved drugs' and to purchase organs for transplant from willing sellers - activities that are presently illegal. His project is animated by one of the highest human aspirations, namely, to alleviate the suffering caused by dreaded diseases. He seeks to ground the un- enumerated right to medical self-defense in the common law justifica- tion of self-defense (traditionally understood), which, he argues, has been extended to the medical context by virtue of the jurisprudence of abortion. Professor Volokh's project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for bet- ter or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (includ- ing self-defense) in the name of avoiding what it takes to be more sig- nificant harms. This same rationale accounts for current governmen- tal limitations on access to unapproved drugs and the current ban on organ sales. The FDA restricts access to unapproved drugs (subject to certain exceptions) in the interest of public health, that is, to prevent patient exposure to unsafe or ineffective drugs and to maintain a func- * Associate Professor, Notre Dame Law School and former General Counsel for the Presi- dent's Council on Bioethics. Many thanks to John Finnis, Rick Garnett, Nicole Garnett, Bill Kel- ley, Gerry Bradley, John Robinson, Yuval Levin, Rob Mikos, and Leigh Fitzpatrick Snead. 1 In his Essay, Professor Volokh argues that terminally ill patients should have access to drugs that have passed Phase I of the FDA approval process (i.e., testing for minimal safety (but not efficacy) sufficient to proceed to the subsequent phases clinical trial process, which involve larger samples of human subjects). Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. ISI3 (2007). However, Volokh argues that the right to medical self defense would, in principle, also entail access to drugs that have not been tested for safety. Id. at 1830 n.79. I

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