The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines

The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose "partial-birth " abortion and the right to use medical marijuana, the Supreme Court reached radically different results based on radically different reasoning. More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching on medical treatment decisions as one body of doctrine, as no other scholar has done. This new perspective reveals that there are in fact two distinct lines of constitutional doctrine touching on the right to make medical treatment decisions: the "public-health" line of cases, which emphasizes the police power of the state over individual rights, and the "autonomy " line of cases, which emphasizes individual bodily integrity and dignity interests. These lines of cases have grown up in parallel, appearing to represent airtight doctrinal categories while in fact addressing the same fundamental question. In addition, courts have applied varying degrees of deference to legislative determinations of medical fact without any logical consistency, perhaps based on largely superficial determinations about what type of case is before them. This Article concludes that a constitutional right to protect one's health should be consistently recognized; that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state's real and legitimate interest in regulating the practice of medicine to protect the public. I. Introduction In 1958, in a mostly forgotten case, the Fifth Circuit sweepingly pronounced that under the Fourteenth Amendment, "the State cannot deny to any individual the right to exercise a reasonable choice in me method of treatment of his ills."1 The court's unqualified language may have been overly optimistic, however: nearly fifty years later, it is hardly certain whether, and to what extent, the government can interfere with individuals' medical treatment choices. For example, in two cases decided just one year apart-one concerning the right to choose "partial-birth" abortion2 and one concerning the right to use medical marijuana-the Supreme Court reached radically different results based on radically different reasoning. In the first case, the Supreme Court broadly recognized an almost absolute right of a woman to choose a particular abortion procedure when her physician believes, in the physician's reasonable medical judgment, that the procedure is safer for the woman man any omer available abortion procedures.3 Moreover, the Court refused to defer to the state's finding that the outlawed procedure was never medically necessary, accepting instead the plaintiff's expert testimony demonstrating medical need.4 In me second case, the Court took a dim view of the claim that patients have a right to access marijuana as a last-resort medical treatment and deferred to Congress's finding that marijuana had no medically acceptable use, despite defendants' evidence to the contrary.5 Courts continue to waver between two very different approaches when dealing with claims of a right to protect one's health by making medical treatment decisions without government interference. In Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach6 me D.C. Circuit initially recognized a constitutional right to access experimental drugs on the theory that a terminally ill patient has the right "to make an informed decision" regarding medical treatment that she and her doctor believe may prolong her life7-men reversed itself in an en banc decision. …