Medical self-defense, prohibited experimental therapies, and payment for organs.

INTRODUCTION Four women are in deadly peril. Alice is seven months pregnant, and the pregnancy threatens her life; doctors estimate her chance of death at 20%. Her fetus has long been viable, so Alice 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 have a right to a therapeutic abortion even if the pregnancy were only posing a serious threat to her health, rather than threatening her life. (1) A man breaks into Katherine's home. She reasonably fears that he may 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. (2) And Katherine has a right to self-defense even though recognizing that right may let some people use false claims of self-defense to get away with murder. Ellen is terminally ill. No proven therapies offer help. An experimental drug therapy seems safe because it has passed Phase I FDA testing, yet federal law bars the therapy outside of clinical trials because it hasn't been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, the 2006 D.C. Circuit panel decision in Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach (3)--since vacated and now being reviewed en banc--would secure Ellen the constitutional right to try to save her life by hiring a doctor to administer the therapy. Olivia is dying of kidney failure. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense might save Katherine's, and an experimental treatment might save Ellen's. But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia must wait years for a donated kidney; she faces a 20% chance of dying before she can get one. (4) Barring compensation for goods or services makes them scarce. Alice and Ellen would be in extra danger 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. Likewise, Olivia's ability to protect her life is undermined by the organ payment ban. (5) 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. (6) Part I argues 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 lethal self-defense right has constitutional foundations in substantive due process, in state constitutional rights to defend life and to bear arms, and perhaps in the Second Amendment. But even setting aside those constitutional roots, the right has long been recognized by statute and common law. Even if the Supreme 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. While a legislature need not fund people's self-defense, it generally ought not substantially burden people's right to defend themselves. Part II discusses one context in which medical self-defense has already been recognized: Roe v. Wade (7) and Planned Parenthood of Southeastern Pennsylvania v. Casey (8) secure not just a previability right to abortion as reproductive choice, but also a separate postviability right to abortion as medical self-defense when pregnancy threatens a woman's life. And it can't be that a woman has a constitutional right to protect her life using medical procedures, but only when those procedures kill a viable fetus; given that Alice has a right to defend herself even when doing so means aborting a viable fetus, Ellen and Olivia should have the same right to defend themselves through other medical procedures. …