Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs


Eugene Volokh


Three sisters lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.

Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in jeopardy, she has a constitutional right to save her life by hiring a doctor to perform a post-viability abortion, though it means the death of a viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, rather than threatening her life.

Katherine lives next door to the hospital. A person comes into her home and seems to be about to try to kill her (or perhaps to seriously injure, rape, or kidnap her). Katherine may protect her life by killing the invader, even if the invader isn't morally culpable, for instance if he's insane or if he mistakenly believes that he's the one defending himself. Just as Alice may protect herself by killing an innocent fetus who is threatening her life, so Katherine may protect herself by killing even a morally innocent attacker who is threatening her life. And Katherine has a right to self-defense even though recognizing this right increases the chance that some people can use false claims of self-defense to get away with killing the innocent.

Ellen, back in the hospital, is terminally ill. No proven therapies offer help. An experimental therapy seems relatively safe, because it has passed Phase I FDA testing, yet federal law bars its use outside clinical trials because it hasn't been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, under the D.C. Circuit's decision in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, Ellen has a constitutional right to try to save her life by hiring a doctor to administer the therapy.

Olivia is dying of kidney failure in the room next to Alice's and Ellen's. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense maysave Katherine's, and an experimental treatment may save Ellen's.

But the federal ban on payment for organs sharply limits the number of available matching kidneys, and Olivia will likely die if she must wait for a donated kidney. Barring compensation for goods or services makes them scarce, and denies many people access to them. Alice and Ellen would be in jeopardy if doctors were only allowed to perform abortions or experimental treatments without compensation. Katherine wouldn't be able to defend herself with a gun or knife if such weapons could only be donated and not sold. If organ providers, or the heirs of posthumous providers, could be compensated for the organs, many more such organs would be available, and Olivia would be much likelier to get the life-saving kidney. But federal law bans organ sales, and thus frustrates her ability to protect her life.

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.

Such a right may be constitutionally founded: Given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves by getting other medical procedures. Alice is entitled to have surgery in which a doctor inserts surgical devices into her body to excise a fetus that, tragically, is threatening her life. Ellen should therefore likewise be entitled to have a procedure in which a doctor inserts chemicals into her body in order to destroy (say) a tumor that is threatening her life. And Olivia should similarly be entitled to have a procedure in which a doctor inserts a replacement organ into her body in order to replace an organ the failure of which is threatening her life. It can't be that a woman is constitutionally entitled to protect her own life, but only when doing so kills a viable fetus.

Such a presumptive right should also be recognized as a moral matter, regardless of one's views on unenumerated constitutional rights. 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, and just as public opinion overwhelmingly supports women's abortion-as-self-defense rights. While a legislature need not fund the exercise of people's self-defense, it generally ought not enact laws that substantially burden people's ability to protect their lives. And while the right -- like other rights -- may be trumped by restrictions that are genuinely necessary to serve the most important of government interests, I argue that no such interests justify total bans on compensation for organs, or on the use of experimental drugs.


Constitutional Law | Health Law and Policy

Date of this Version

October 2006