Jennifer Prah Ruger. Governing Health: Responding to Eugene Volokh, Essay, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harvard Law Review 1813 (2007), in 121 Harvard Law Review 43-56 (2008) [Full Text].
“Professor Volokh argues for a constitutional right to “medical self-defense” for two purposes: first, to allow terminally ill patients to purchase, at their own expense, drugs that have not completed the Food and Drug Administration’s (FDA) approval process and, second, to allow all individuals access to trans-planted organs for which there are current bans on payment.”
This response presents “an alternative theoretical approach to the question of rights to health and health care. I will argue that a right to health care need not, indeed cannot, be framed in an absolute libertarian framework of wholly individualistic rights against the State…My alternative is to theoretically ground a right to health in the more positive conceptualization of freedom — human flourishing — arguing for treating the right to health as an ethical demand for equity in health. Unlike the legalistic, yet theoretically ungrounded, guarantee of a “right to medical self-defense,” a right to health so conceived purports that the regulation of self and society necessitate not just justiciable and enforceable legal rights or instruments, but also individuals and a collective with internalized public moral norms that inform the choices they make for themselves and their society to ensure capabilities to be healthy for all people, including the terminally ill.”