The constitutional right to make medical treatment decisions: A tale of two doctrines

Texas Law Review

Volumn 86, Issue 2, 2007, Pages 278-345

  Hill, B Jessie ^a  

^a CASE WESTERN RESERVE UNIVERSITY   (United States)

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EID: 38349152559     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (384)

1. England v. La. State Bd. of Med. Exam'rs, 259 F.2d 626, 627 (5th Cir. 1958) (emphasis omitted) (holding that plaintiffs could challenge Louisiana's prohibition on the practice of chiropractic medicine as a due process violation).
2. I place the term "partial-birth" abortion in quotes because it is considered by many to be an inaccurate and political term, like "assault weapon." "Partial-birth" abortion is not a medical term and in fact did not, at the time states began adopting "partial-birth" abortion bans, refer to any particular procedure known to physicians. The term is clearly intended to have vivid emotional impact, which is why abortion opponents prefer it to a term like "dilation and extraction" or "D&X." See, e.g., Gail Glidewell, Note, "Partial Birth" Abortion and the Health Exception: Protecting Maternal Health or Risking Abortion on Demand?, 28 FORDHAM URB. L.J. 1089, 1095 (2001) (explaining that the term is not medically recognized and was selected by abortion opponents in the hope that it would conjure up graphic images of the procedure, thus undermining public support for abortion rights);
3. cf. Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial-Birth Abortion and Word Games - A Response to Steve Grasz and Other Conservatives, 35 CREIGHTON L. REV. 11, 12 n.7 (2001) (noting, as the judge who authored the district court opinion in Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998), that the imprecision of the term "partial-birth abortion" was "a big problem").
4. Stenberg v. Carhart (Carhart I), 530 U.S. 914, 938 (2000).
5. Id. at 934-36.
6. United States v. Oakland Cannabis Buyers' Coop. (OCBC), 532 U.S. 483, 490-93 (2001).
7. 445 F.3d 470 (D.C. Cir. 2006), rev'd en banc, 495 F.3d 695 (D.C. Cir. 2007).
8. Id. at 477. Several months after Abigail Alliance was decided, the FDA proposed new rules to make experimental drugs more widely available to seriously ill patients. Expanded Access to Investigational Drugs for Treatment Use, 71 Fed. Reg. 75,147 (Dec. 14, 2006) (to be codified at 21 C.F.R. pt. 312);
9. Charging for Investigational Drugs, 71 Fed. Reg. 75,168 (Dec. 14, 2006) (to be codified at 21 C.F.R. pt. 312).
10. Abigail Alliance, 495 F.3d 695. The Washington Legal Foundation recently filed a certiorari petition to challenge the en banc court's holding. Petition for Writ of Certiorari, Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, No. 07-444 (U.S. Sept. 28, 2007), 2007 WL 2846053.
11. Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007).
12. Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
13. See, e.g., Posting of Lyle Denniston to SCOTUSblog, http://www.scotusblog.com/movable type/archives/2005/06/commentary_just.html (June 6, 2005, 20:30 EST) (discussing Justice Kennedy's "zero- tolerance" attitude toward drugs, which may shape his view of the other legal issues in a given case).
14. Denniston's post was cited in Jonathan H. Adler, Is Morrison Dead? Assessing a Supreme Drug (Law) Overdose, 9 LEWIS & CLARK L. REV. 751, 770 (2005) ("Other commentators have been less charitable in their initial assessments, suggesting that Justice Kennedy may have views about drug use that eclipse his concerns about the traditional federal state balance.").
15. Of course, formulating the problem in this way inevitably raises the question of what constitutes medical treatment. In this Article, I am contemplating only those cases in which both a patient and her physician have agreed upon a course of treatment, and the government wishes to prohibit that treatment. Therefore, I am neither arguing that an individual has an unqualified right to do what she pleases with her body, nor am I questioning the authority of the state to forbid the practice of medicine by nonphysicians. Rather, my argument relies in part on the constitutional importance of the physician-patient relationship. See Doe v. Bolton, 410 U.S. 179, 197 (1973) (finding the statute limiting access to abortion unconstitutional because, along with other problems, "[t]he woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited"); Roe v. Wade, 410 U.S. 113, 153 (1973) (emphasizing that the physical, psychological, and emotional aspects of terminating a pregnancy "are factors the woman and her responsible physician necessarily will consider in consultation"). But see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) ("Whatever constitutional status the doctor-patient relation may have as a general matter . . . it is derivative of the woman's position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified . . . ."); Rust v. Sullivan, 500 U.S. 173, 202-03 (1991) (holding that a regulation prohibiting federally funded family-planning services from discussing abortion did not impermissibly interfere with the doctor-patient relationship). Moreover, the physician's role (which itself incorporates the state's power to regulate the qualifications of physicians) provides an important check on the individual's exercise of a right to make medical treatment choices. See Doe, 410 U.S. at 197 (arguing that review by a hospital committee of the decision to have an abortion is unnecessary because a woman would only choose an abortion "in accordance with her licensed physician's best judgment"). Perhaps further limitations might be imposed on the definition of medical treatment, such as a requirement that the proposed treatment have a minimum threshold of acceptance in the medical community.
16. One law-review article from 1989 discusses a number of the cases considered here in arguing that the substantive-due-process right to privacy encompasses a right to make health-care decisions. Elizabeth G. Patterson, Health Care Choice and the Constitution: Reconciling Privacy and Public Health, 42 RUTGERS L. REV. 1 (1989). Many of the cases discussed in this Article have been decided since 1989, however, and have reshaped the doctrine considerably.
17. 197 U.S. 11 (1905).
18. 381 U.S. 479 (1965).
19. The notion of a constitutional right to make medical treatment decisions also invokes another question of "who decides" - namely, whether the patient or the doctor decides on the appropriate course of treatment. That question, which is one discussed extensively by bioethics scholars, is beyond the scope of this Article. In this Article, I assume that the doctor and patient have agreed on a particular course of treatment that in turn is prohibited by law.
20. 530 U.S. 914 (2000).
21. 532 U.S. 483 (2001).
22. 127 S. Ct. 1610 (2007).
23. See id. at 27 (deferring to the Controlled Substances Act as an authoritative "regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner").
24. Id.
25. United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1102-03 (N.D. Cal. 1998) (citing Defendants' Supplemental Opposition Memorandum at 9, Cannabis Cultivators Club, 5 F. Supp. 2d 1086 (No. 98-0085)), rev'd sub nom. United States v. Oakland Cannabis Buyers' Coop., 190 F.3d 1109 (9th Cir. 1999) (per curiam), rev'd, 532 U.S. 483 (2001).
26. United States v. Oakland Cannabis Buyers' Coop. (OCBC), 532 U.S. 483, 486-87 (2001). The federal government had brought suit against the cooperative and its executive director, seeking an injunction against the cooperative's activities. The suit against the Oakland Cannabis Buyers' Cooperative was one of six suits against cannabis dispensaries in California brought by the federal government and consolidated into one case in the district court. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1092-93.
27. Cannabis Cultivators Club, 5 F. Supp. 2d at 1101-03.
28. Oakland Cannabis Buyers' Coop., 190 F.3d at 1115; Appellants' Opening Brief at 13-14, Oakland Cannabis Buyers' Coop., 190 F.3d 1109 (No. 98-16950). A number of studies document the safety and potential medical benefits of cannabis. See, e.g., INST. OF MED., MARIJUANA & MEDICINE: ASSESSING THE SCIENCE BASE 159 (Janet E. Joy et al. eds., 1999) ("Nausea, appetite loss, pain, and anxiety are all afflictions of wasting, and all can be mitigated by marijuana.");
29. Donald I. Abrams et al., Short-Term Effects of Cannabinoids in Patients with HIV-1 Infection: A Randomized, Placebo-Controlled Clinical Trial, 139 ANNALS INTERNAL MED. 258, 264 (2003) (documenting the safety of cannabis for HIV patients);
30. David Baker et al., The Therapeutic Potential of Cannabis, 2 LANCET NEUROLOGY 291, 294-96 (2003) (documenting the benefits for sufferers of neurological and neurodegenerative disease).
31. Oakland Cannabis Buyers' Coop., 190 F.3d at 1115; Appellants' Opening Brief, supra note 25, at 15.
32. Cannabis Cultivators Club, 5 F. Supp. 2d at 1103 (quoting Defendants' Supplemental Opposition Memorandum, supra note 22, at 9).
33. United States v. Cannabis Cultivator's Club, No. C 98-0085 CRB, 1999 WL 111893, at *2 (N.D. Cal. Feb. 25, 1999).
34. Id. at *2, *2-3 ("If one does not have a right to obtain medication free from government regulation, there is no reason one would have that right upon a physician's recommendation."). The district court had initially rejected the defendants' substantive-due-process claims partly on the ground that it was inappropriate for the cannabis distributors to raise this argument as a defense to a suit for an injunction to enforce the Controlled Substances Act, suggesting instead that the issue would be better presented by an individual patient. See Cannabis Cultivators Club, 5 F. Supp. 2d at 1103. When four individual patients intervened in the suit and requested a declaration that they had such a right, however, they fared no better. Cannabis Cultivator's Club, 1999 WL 111893, at *2-3.
35. 616 F.2d 1120 (9th Cir. 1980).
36. 616 F.2d 455 (10th Cir. 1980).
37. See, e.g., Alistair E. Newbern, Comment, Good Cop, Bad Cop: Federal Prosecution of State-Legalized Medical Marijuana Use After United States v. Lopez, 88 CAL. L. REV. 1575, 1591 (2000) (noting that Laetrile proponents claimed that the drug taken in high doses slowed the effects of cancer).
38. See generally Charles G. Moertel et al., A Clinical Trial of Amygdalin (Laetrile) in the Treatment of Human Cancer, 306 NEW ENG. J. MED. 201, 201 (1982) (detailing the history of medical uses of Laetrile).
39. Cannabis Cultivator's Club, 1999 WL 111893, at *3, *2-3 (quoting Rutherford, 616 F.2d at 457 (emphasis added)); see also United States v. Osburn, No. C 02-939 AHM, 2003 U.S. Dist. LEXIS 8607, at *6, *5-6 (C.D. Cal. Apr. 15, 2003) (rejecting "any protected, fundamental right to the choice of a particular treatment or medicine").
40. United States v. Oakland Cannabis Buyers' Coop., 190 F.3d 1109, 1114-15 (9th Cir. 1999) (per curiam), rev'd, 532 U.S. 483 (2001).
41. United States v. Oakland Cannabis Buyers' Coop. (OCBC), 532 U.S. 483, 490-91 (2001).
42. 521 U.S. 702 (1997).
43. Brief for the Respondents at 42-43, OCBC, 532 U.S. 483 (No. 00-151) (citing Glucksberg, 521 U.S. 702, 737 (1997) (O'Connor, J., concurring) and id. at 745 (Stevens, J., concurring)).
44. OCBC, 532 U.S. at 494.
45. Id. at 501 (Stevens, J., concurring). Justice Stevens's concurrence was joined by Justices Souter and Ginsburg. Interestingly, this issue - essentially one of third-party standing-has not been controversial in the abortion context, where physicians and clinics routinely assert their patients' right to a health exception, which is conceptually similar to the medical necessity defense at issue in OCBC. See, e.g., Stenberg v. Carhart (Carhart I), 530 U.S. 914 (2000) (allowing Dr. Carhart to assert his patients' constitutional right to a health exception).
46. United States v. Oakland Cannabis Buyers' Coop., 190 F.3d 1109, 1115 (9th Cir. 1999) (per curiam), rev'd, 532 U.S. 483 (2001). The Court suggested that the issue was raised by defendants only as an argument that the Court should avoid constitutional questions in construing the statute, see OCBC, 532 U.S. at 494, but the issue was clearly not only raised in this posture, see Brief for the Respondents, supra note 37, at 42-49; see also Transcript of Oral Argument at 38-39, OCBC, 532 U.S. 483 (No. 00-151), 2001 WL 300618.
47. See infra subpart II(B).
48. OCBC, 532 U.S. at 491 (quoting 21 U.S.C. § 812 (2000)). The Controlled Substances Act categorizes drugs into different "schedules" according to their usefulness and their propensity for abuse. Kathleen T. McCarthy, Conversations About Medical Marijuana Between Physicians and Their Patients, 25 J. LEGAL MED. 333, 335 (2004). In order to place a drug in Schedule I, either Congress or the Attorney General, acting on the recommendations of the Secretary of Health and Human Services, must find that the drug "has no currently accepted medical use in treatment in the United States," that it "has a high potential for abuse," and that it has "a lack of accepted safety for use . . . under medical supervision." 21 U.S.C. § 812(b)(1)(A)-(C);
49. see also Lars Noah, Challenges in the Federal Regulation of Pain Management Technologies, 31 J.L. MED. & ETHICS 55, 58 (2003) (describing the scheduling system for controlled substances). Schedule I drugs therefore may not be prescribed or distributed for any reason. 21 U.S.C. § 841(a). A Schedule II drug is one that has a high potential for abuse, potentially leading to severe physical or psychological dependence, but has a currently accepted medical use. 21 U.S.C. § 812(b)(2). In the case of marijuana, it was Congress that placed the drug in Schedule I. Noah, supra, at 59. Attempts to reschedule the drug have been administratively pursued but have failed. See id. at 60-61 (explaining how interdepartmental conflicts have contributed to the challenge of convincing the DEA and FDA to down-schedule marijuana).
50. See Raich v. Ashcroft, 248 F. Supp. 2d 918, 929 (N.D. Cal. 2003) ("The main foundation for the Supreme Court's position in OCBC rests upon Congress'[s] findings that marijuana has no currently accepted medical use."), rev'd, 352 F.3d 1222 (9th Cir. 2003), vacated and remanded sub nom. Gonzales v. Raich, 545 U.S. 1 (2005); Noah, supra note 42, at 59 (noting that in OCBC, "the U.S. Supreme Court showed tremendous deference to the legislature's judgment about the appropriate classification of marijuana" and that the "decision turned entirely" on Congress's conclusion that marijuana lacked any currently accepted medical use).
51. OCBC, 532 U.S. at 493. Interestingly, Justice Stevens seemed troubled by this issue three years later in hearing oral argument in Gonzales v. Raich. The following exchange between Justice Stevens and Paul Clement, arguing on behalf of the Attorney General of the United States, is noteworthy: JUSTICE STEVENS: Do you think there could be any state of facts on which a judicial tribunal could disagree with the finding of Congress that there's no acceptable medical use? Say they had a - say there was a judicial hearing on which they made a contrary finding. Would we have to ignore that? Would we have to follow the congressional finding or the judicial finding if that happened? MR. CLEMENT: Well, it depends on the exact hypothetical you have in mind. I think the - the judicial finding that I think would be appropriate, and this Court would not have to ignore in any way, is a finding by the D.C. Circuit that, in a particular case where there's a rescheduling effort before the FDA, that the underlying judgement [sic] of the FDA refusing to reschedule is invalid, arbitrary, capricious. That's the way to go after the finding that marijuana is a Schedule I substance without a valid medical use in treatment. This is not a situation in - and your hypothetical might respond to a different statute that raised a harder question, where Congress made such a medical finding, and then just left it there without any mechanism to adjust the finding for changing realities. Transcript of Oral Argument at 20-21, Raich, 545 U.S. 1 (No. 03-1454). Thus, even the Government's attorney acknowledged the possibility of a "harder question" where Congress has made a scientific finding unsupported by current scientific evidence. Cf. Gonzales v. Carhart, 127 S. Ct. 1610, 1637-38 (2007) (highlighting the discrepancy between congressional and judicial findings on the medical necessity of "partial-birth abortion" and the practice of teaching the prohibited procedure in medical schools, and accordingly declining to defer uncritically to the legislative findings). It is not clear, however, why the existence of an administrative process by which parties may seek rescheduling of a drug should make any difference in the degree of deference that courts owe to congressional findings.
52. The en banc D.C. Circuit also read OCBC as relevant to the plaintiffs' claim of a constitutional right to access experimental cancer drugs in Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 707-08 (D.C. Cir. 2007).
53. 545 U.S. 1 (2005).
54. Id. at 33.
55. Raich, 248 F. Supp. 2d at 928.
56. Raich v. Gonzales, 500 F.3d 850, 864-66 (9th Cir. 2007).
57. Stenberg v. Carhart (Carhart I), 530 U.S. 914, 927-29 (2000). The procedure is also referred to as intact dilation and evacuation or intact D&E. At the time Carhart was decided, twenty-nine other states had "partial-birth" abortion bans similar to Nebraska's. See id. at 983 (Thomas, J., dissenting).
58. NEB. REV. STAT. ANN. § 28-326(9) (LexisNexis 2007).
59. Carhart I, 530 U.S. at 921-22 (quoting NEB. REV. STAT. ANN. § 28-328(1) (LexisNexis Supp. 1999)).
60. 410 U.S. 113 (1973).
61. 505 U.S. 833 (1992).
62. Carhart I, 530 U.S. at 929-30.
63. Id. at 931, 929-31 (quoting Casey, 505 U.S. at 879).
64. The D&X procedure may be used as early as sixteen weeks' gestation. Id. at 927.
65. Id. at 935-45.
66. Id. at 938.
67. See id. at 929-30 ("The question before us is whether Nebraska's statute, making criminal the performance of a 'partial birth abortion,' violates the Federal Constitution . . . . We conclude that it does for at least two independent reasons." (citations omitted)); see also id. at 948 (O'Connor, J., concurring) (noting that the "lack of a health exception necessarily renders the statute unconstitutional" but adding that the law is also "unconstitutional on the alternative and independent ground that it imposes an undue burden on a woman's right to choose to terminate her pregnancy before viability"). Some of the Justices argued in dissent that the requirement of a health exception was not itself a separate and independent requirement but rather should be analyzed under the rubric of the undue burden inquiry. See id. at 968, 965-68 (Kennedy, J., dissenting) (arguing that a health exception was not required because the "marginal" safety differences between D&X and D&E "do not amount to a substantial obstacle to the abortion right"); id. at 1011 n.20 (Thomas, J., dissenting) (criticizing the majority's failure to analyze the health risks with respect to undue burden). This view was largely rejected by lower courts, which believed they had the support of the Supreme Court itself. E.g., Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 508 (6th Cir. 2006) (citing Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 330-31 (2006)); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 923 (9th Cir. 2004) (citing Carhart I, 530 U.S. at 930). In Gonzales v. Carhart, 127 S. Ct. 1610 (2007), however, the Supreme Court analyzed the lack of a health exception in the federal Partial Birth Abortion Ban Act in terms of whether it constituted an undue burden. See id. at 1637 ("The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.").
68. Carhart I, 530 U.S. at 931.
69. Id. at 933-34.
70. Id. at 933-36.
71. Id. at 1015-16 (Thomas, J., dissenting); Prohibit Partial-Birth Abortion: Hearing on L.B. 23 Before the Comm. on the Judiciary, 95th Leg., 1st Sess. 50, 64 (Neb. 1997).
72. Carhart I, 530 U.S. at 932.
73. Id. at 932-33.
74. Id. at 937.
75. Id. at 937-38 (quoting Reply Brief for Petitioners at 4, Carhart I, 530 U.S. 914 (No. 99-830)).
76. Id.
77. See Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 111 (2000) (noting that the law in Carhart I was "quite different" from that in Roe in that the D&X ban "did not completely conscript women's bodies or channel them into narrowly circumscribed lives," and that "the law, if narrowly construed, outlawed only a single procedure, leaving other methods of abortion unaffected"); id. at 109-14 (noting philosophical and rhetorical distinctions between the opinions in Carhart I and Roe). This Article does not address the question of what sorts of concerns may be taken into account when deciding whether one procedure is safer than another - for example, mental-health concerns. This is an area that has remained poorly defined in abortion law.
78. See, e.g., Brian D. Wassom, Comment, The Exception that Swallowed the Rule? Women's Medical Professional Corporation v. Voinovich and the Mental Health Exception to Post-Viability Abortion Bans, 49 CASE W. RES. L. REV. 799, 799-800 (1999) (discussing the ambiguity of and debate over the meaning of "health" in abortion case law). In general, the claimed safety benefits of D&X over other procedures pertain to the woman's physical health.
79. Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 769 (1986) (citing Colautti v. Franklin, 439 U.S. 379, 400 (1979)), overruled in part by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), abrogated in part by Webster v. Reprod. Health Servs., 492 U.S. 490 (1989). In Colautti v. Franklin, the Supreme Court struck down on vagueness grounds a state statute requiring physicians to use the postviability method of abortion most likely to result in a live birth, so long as a different technique was not necessary to preserve the life or health of the woman. Colautti, 439 U.S. at 390. The Court also suggested in dicta that such a standard-of-care requirement might endanger the woman's privacy rights as well. Id. at 400. The Tenth Circuit held a similar choice-of-method statute unconstitutional in Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir. 1995), rev'd on other grounds sub nom. Leavitt v. Jane L., 518 U.S. 137 (1996) (per curiam), where the court emphasized that "a woman's health must be the paramount concern." Id. at 1504; see also, e.g., Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 698, 697-98 (2004) (emphasizing the "absolute primacy of women's health," which may not be traded off against fetal survival, in post-Roe, pre-Casey Supreme Court decisions);
80. April L. Cherry, Roe's Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female Citizenship, 6 U. PA. J. CONST. L. 723, 727, 727-28 (2004) (discussing Thornburgh and stating that the law is unambiguous that "in the context of abortion, women have the constitutional right to put their own lives and health before that of their fetuses, even after viability");
81. Seth F. Kreimer, The Second Time as Tragedy: The Assisted Suicide Cases and the Heritage of Roe v. Wade, 24 HASTINGS CONST. L.Q. 863, 898 (1997) ("The state may not require a pregnant woman to sacrifice her health even for a viable fetus.").
82. Carhart I, 530 U.S. at 968 (Kennedy, J., dissenting).
83. Id. at 970 (citing Kansas v. Hendricks, 521 U.S. 346, 360 (1997); Jones v. United States, 463 U.S. 354, 370 (1983); United States v. Rutherford, 442 U.S. 544 (1979); Marshall v. United States, 414 U.S. 417, 427 (1974); Lambert v. Yellowley, 272 U.S. 581, 596-97 (1926); and Collins v. Texas, 223 U.S. 288, 297-98 (1912)); see also id. at 1017-18 (Thomas, J., dissenting) (noting that the Nebraska Legislature had before it evidence suggesting that the D&X procedure is unsafe and that it is never medically indicated, and therefore arguing that "legislatures have been afforded the widest latitude in drafting such statutes . . . [w]hen a legislature undertakes to act in areas fraught with medical and scientific uncertainties" (omission in original) (quoting Hendricks, 521 U.S. at 369 n.3)).
84. Indeed, not only did the Court definitively recognize such a right for women seeking an abortion in Carhart I, it appeared to recognize that right as an absolute one. The Court did not contemplate that any state interest would be sufficient to overcome the woman's right to protect her health in this context, nor did it mention levels of scrutiny or standards of review. For this reason, the Carhart I-Roe health-exception requirement is difficult to integrate into standard substantive-due-process doctrine. Of course, it is fair to say that "the Supreme Court's substantive due process jurisprudence has been anything but a model of clarity." Marc Spindelman, Are the Similarities Between a Woman's Right to Choose an Abortion and the Alleged Right to Assisted Suicide Really Compelling?, 29 U. MICH. J.L. REFORM 775, 781 (1996);
85. see also Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L. REV. 63, 64 (2006) (discussing the confusing state of substantive-due-process doctrine);
86. Lois Shepherd, Looking Forward with the Right of Privacy, 49 U. KAN. L. REV. 251, 251-52 (2001) ("Thirty-five years after the Supreme Court first explicitly recognized a constitutional right to privacy in Griswold v. Connecticut, we are still grappling with understanding and articulating what that right embraces." (footnote omitted)). Nonetheless, the apparent per se rule articulated by the Court does not fit clearly into any of the available paradigms of substantive-due-process review.
87. Cf. David D. Meyer, Lochner Redeemed: Family Privacy after Troxel and Carhart, 48 UCLA L. REV. 1125, 1160, 1159-62 (2001) (noting that the Court in Carhart I treated the lack of a health exception as a "stand-alone defect" rather than a burden to be considered within Casey's "undue burden" framework and arguing that the Court thus applied a standard similar to strict scrutiny). The Supreme Court does not always articulate a clear standard of review for constitutional claims, however, and has most notably declined to do so recently in Lawrence v. Texas, 539 U.S. 558 (2003).
88. See Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" that Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1916, 1916-17 (2004) (acknowledging the majority's lack of an "explicit statement" pinpointing the standard of review).
89. United States v. Oakland Cannabis Buyers' Coop. (OCBC), 532 U.S. 483, 494 n.7 (2001). The injunction had created an exception for distribution to patients who: (1) suffer from a serious medical condition, (2) will suffer imminent harm if the patient-member does not have access to cannabis, (3) need cannabis for the treatment of [a] medical condition, or need cannabis to alleviate the medical condition or symptoms associated with the medical condition, and (4) have no reasonable legal alternative to cannabis for the effective treatment or alleviation of the . . . medical condition or symptoms . . . because . . . the alternatives have been ineffective . . . or the alternatives result in side effects which the [patient] cannot reasonably tolerate. Id. at 489 n.2.
90. See State v. Corrigan, No. C0-00-2190, 2001 Minn. App. LEXIS 889, at *2, *2-4 (Minn. Ct. App. Aug. 7, 2001) (refusing to reconsider the state legislature's determination that marijuana had "no currently accepted medical use in the United States," despite the claim that the medical literature has come to recognize the therapeutic benefits of marijuana since that determination was made (quoting State v. Hanson, 468 N.W.2d 77, 78 (Minn. Ct. App. 1991))); id. at *3-4 ("Whether changed circumstances have occurred that would now warrant recognition of a medical necessity defense to a charge of possession of marijuana is for the legislature to determine, not for this court.").
91. Cf. LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 11-14 (2000) (explaining that unlike medicine, which prioritizes the well-being of individual patients, public health prioritizes the collective well-being of populations);
92. ALAN HYDE, BODIES OF LAW 243 (1997) ("The interest of the Jacobson [v. Massachusetts] case lies in the discursive process through which the unvaccinated body of Henning Jacobson is constituted a threat to society.");
93. Wendy E. Parmet, Terri and Katrina: A Population-Based Perspective on the Constitutional Right to Reject Treatment, 15 TEMP. POL. & CIV. RTS. L. REV. 395 (2006) (contrasting the perspective of constitutional law, based primarily in liberal individualism, with the perspective of public health, which is population based).
94. 274 U.S. 200 (1927).
95. See id. at 205, 205-07 (holding that the state could properly sterilize those determined to be "feeble-minded" to prevent the birth of "feeble-minded" children who might lead lives of crime or indigency); Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905) (upholding Massachusetts's compulsory smallpox-vaccination program, citing a real and substantial relation to the protection of the public health and safety).
96. GOSTIN, supra note 77, at 66.
97. Wendy E. Parmet et al., Individual Rights Versus the Public's Health - 100 Years After Jacobson v. Massachusetts, 352 NEW ENG. J. MED. 652, 652 (2005).
98. In fact, Jacobson was a Lochner-era case. The doctrine of substantive due process was of course liberally applied in the Lochner era but largely to strike down laws on the grounds that they interfered with economic rights, not fundamental personal rights.
99. Cf. Wendy E. Parmet, Legal Rights and Communicable Disease: AIDS, the Police Power, and Individual Liberty, 14 J. HEALTH POL. POL'Y & L. 741, 751 (1989) (discussing Jacobson's simultaneous affirmation of the state's power to act to protect the public and recognition of an individual right that could limit that power).
100. Jacobson, 197 U.S. at 12-13.
101. See, e.g., Sheldon Gelman, The Biological Alteration Cases, 36 WM. & MARY L. REV. 1203, 1207 n.22 (1995) (noting that Jacobson is sometimes miscited as a case of religious refusal of vaccination).
102. Jacobson, 197 U.S. at 36. Indeed, such reactions had apparently been documented in the medical literature existing at the time. See, e.g., GOSTIN, supra note 77, at 347 n.43 (describing Edward Jenner's original publication on smallpox vaccination as disclosing one case of a severe adverse reaction to the vaccine); Michael Willrich, "The Least Vaccinated of Any Civilized Country": Personal Liberty and Public Health in the Progressive Era, J. POL'Y HIST. (forthcoming Jan. 2008) (manuscript at 9, on file with author) (mentioning a 1902 medical journal report of deaths of nine schoolchildren following tetanus vaccinations). Moreover, until mid-1902, approximately the time when Henning Jacobson resisted vaccination, vaccines were almost completely unregulated, and some vaccines that were ineffective or impure made their way to market. Id. (manuscript at 8-9).
103. Jacobson, 197 U.S. at 26.
104. Id. at 24, 36.
105. Id. at 26, 25-26. As Wendy Parmet has persuasively demonstrated, the term "police power" was historically understood to have a specific meaning, closely tied to the power and duty of state and local governments to protect health, and it was understood as an affirmative source of power that could limit individual rights. Wendy E. Parmet, From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public Health, 40 AM. J. LEGAL HIST. 476, 478 (1996) [hereinafter Parmet, From Slaughter-House to Lochner];
106. Wendy E. Parmet, Health Care and the Constitution: Public Health and the Role of the State in the Framing Era, 20 HASTINGS CONST. L.Q. 267, 272 (1993) [hereinafter Parmet, Health Care]. According to Parmet, this understanding began to change in the Lochner era, in which not only traditional public-health measures, such as the mandatory-vaccination law in Jacobson, but more social and less obviously health-related laws, such as laws pertaining to working conditions, began to be justified in the name of police powers. Parmet, From Slaughter-House to Lochner, supra, at 495-97.
107. Jacobson, 197 U.S. at 27. Lawrence Gostin has influentially suggested that Jacobson may be read not only as an affirmation of the police power but also as imposing limitations on that power, including requirements of necessity, reasonable means, proportionality, and harm avoidance. See, e.g., GOSTIN, supra note 77, at 67-69. The last requirement, harm avoidance, may be read into the notion that a health exception should be implied in the vaccination statute. See infra text accompanying notes 95-99. The remaining requirements are arguably on less firm doctrinal ground, but courts have nonetheless frequently applied them. See, e.g., Scott Burris, Rationality Review and the Politics of Public Health, 34 VILL. L. REV. 933, 966, 937-38, 938 & n.11, 966-67 (1989) (suggesting that Jacobson's "doctrinal basis has eroded" and questioning why courts continue to apply the requirements derived therefrom). At the same time, Jacobson has often been cited to demonstrate that the public interest may limit the scope of individual rights, rather than to demonstrate the limits on public-health actions by governments. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 742 (1997) (Stevens, J., concurring) (citing Jacobson in connection with the argument that an individual's autonomy interests may be overridden by more important state interests in preserving life); Roe v. Wade, 410 U.S. 113, 154 (1973) (citing Jacobson for the proposition that there is no "unlimited right to do with one's body as one pleases," without regard to countervailing state interests).
108. Jacobson, 197 U.S. at 27.
109. HYDE, supra note 77, at 243.
110. Jacobson, 197 U.S. at 23-30.
111. Id. at 30.
112. 72 N.E. 97 (N.Y. 1904).
113. Jacobson, 197 U.S. at 35 (quoting Viemeister, 72 N.E. at 99); accord Duffield v. Sch. Dist. of Williamsport, 29 A. 742, 743 (Pa. 1894).
114. Accord State v. Hay, 35 S.E. 459, 461 (N.C. 1900). But see Burris, supra note 90, at 961 (arguing that Jacobson's apparent deference must be read in light of the Court's Lochner-era willingness to scrutinize laws carefully while claiming to apply rationality review, and arguing that "the Court's reliance on the People's right to choose vaccination as a health measure actually had more to do with the overwhelming social consensus that vaccination was medically valuable than a view that the medical bona fides of a health action were irrelevant").
115. Jacobson, 197 U.S. at 36. It appears that the Court found Jacobson's proffered evidence on this point inapposite because it was possible that he had had an adverse reaction to vaccination as a child but was now an adult who was sufficiently healthy to be vaccinated. Id. at 37.
116. Id. at 38, 38-39.
117. Id. at 39.
118. In the autonomy cases, by contrast, the burden appears to be on the government to show that no health exception is necessary - as in Carhart I, discussed above. Similarly, in Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), the Supreme Court rejected a school board's attempt to justify a mandatory pregnancy-leave policy based on generalized statements about the health risks associated with working while pregnant. Id. at 648. The Court thus placed the burden on the government to avoid individualized assessment of pregnant women's health needs. See id. at 644.
119. Cf. Hay, 35 S.E. at 461 (noting that a health exception to a vaccination law was required, although not provided for in the statutory language, and remanding a criminal conviction for a determination of whether the defendant was entitled to the benefit of that exception). Professor Michael Willrich points to the lawsuits challenging mandatory vaccination as some of the first and most important moments in which judges began to recognize claims of individual rights against police power in the context of the Progressive era. Willrich, supra note 86, at 3.
120. Buck v. Bell, 274 U.S. 200, 207 (1927).
121. Id. at 207.
122. Id. at 206.
123. Id. at 207.
124. Moreover, "the Court did not view Jacobson as having required any substantive standard of necessity or reasonableness that would prevent what today would be considered an indefensible assault." Wendy K. Mariner et al., Jacobson v. Massachusetts: It's Not Your Great-Great-Grandfather's Public Health Law, 95 AM. J. PUB. HEALTH 581, 584 (2005).
125. See, e.g., Paul A. Lombardo, Medicine, Eugenics, and the Supreme Court: From Coercive Sterilization to Reproductive Freedom, 13 J. CONTEMP. HEALTH L. & POL'Y 1, 8 ( 1996) (describing Buck as "an anomaly" and noting that "[e]xcept in the context of vaccination for contagious disease, coercive court ordered medical procedures had not been endorsed by the Supreme Court prior to Buck"); Mariner et al., supra note 107, at 586 ("Today, a general interest in the public's health or welfare could not justify sterilizing Carrie Buck against her will.").
126. 316 U.S. 535 (1942).
127. Id. at 541.
128. Skinner did not overrule but instead distinguished Buck. See id. at 539-42. But the Court was much less deferential toward the legislature's factual findings regarding the medical appropriateness of sterilization for certain classes of individuals in Skinner than in Buck. Compare Skinner, 316 U.S. 535, which struck down a sterilization law for criminals on equal protection grounds, with Buck, 274 U.S. 200, which rejected due process and equal protection challenges to a Virginia law permitting coerced sterilization of the mentally incompetent. See also Lombardo, supra note 108, at 19, 18-19 (noting how the Court distinguished Buck in its decision in Skinner, in part due to the "more precise use of eugenic criteria" in Buck).
129. 265 U.S. 545 (1924).
130. 272 U.S. 581 (1926).
131. Everard's Breweries, 265 U.S. at 561-62.
132. Lambert, 272 U.S. at 594-95 (citing Everard's Breweries, 265 U.S. at 560).
133. In a masterful recent article, Robert Post has situated Everard's Breweries and Lambert in the context of the debate over the appropriate scope of federal power in the Progressive era. See Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 WM. & MARY L. REV. 1, 57-67 (2006). Indeed, Post explains that the original draft of the Lambert opinion: cited Everard's Breweries, documented extensive state regulation of the prescription of alcoholic beverages for medicinal purposes in order to enforce municipal prohibition laws, and then concluded with the peremptory announcement [still contained in the opinion] that "[t]here is no right to practice medicine which is not subordinate to the police power. . . or to the power of Congress to make laws necessary and proper for carrying into execution the command of the Eighteenth Amendment." Id. at 60 n.212 (omission and second alteration in original)
134. (quoting THE LOUIS DEMBITZ BRANDEIS PAPERS, at Reel 29 (1985)).
135. Lambert, 272 U.S. at 595. But cf. United States v. Freund, 290 F. 411 (D. Mont. 1923) (holding, before Everard's Breweries and Lambert were decided, that it was unconstitutional for Congress to override a physician's judgment regarding the maximum amount of alcohol to be prescribed per day). The Freund court argued that such restrictions violate the "lawful property and personal right of physicians to prescribe alcohol for remedial purposes, and of ailing people to receive it," id. at 413, and that "[i]t is an extravagant and unreasonable attempt to subordinate the judgment of the attending physician to that of Congress, in respect to matters with which the former alone is competent to deal," id. at 414.
136. See Lambert, 272 U.S. at 598-605 (Sutherland, J., dissenting) (arguing that the legislature had not reviewed evidence on the specific issue before the Court).
137. Post, supra note 116, at 62 (quoting Lambert, 272 U.S. at 488).
138. Id. at 61-64, 64 & n.20.
139. 442 U.S. 544 (1979).
140. Id. at 552.
141. Id.
142. Id. at 559 n.18.
143. Id. at 557-58.
144. Id. at 558.
145. Brief for the United States at 56, Rutherford, 442 U.S. 544 (No. 78-605).
146. Id. at 57.
147. Id. at 70-71. The Commissioner initially made no such finding; the Government argued at the beginning of the Rutherford litigation that Laetrile was a "new drug" under the FDCA that was not found to be safe and effective, although the FDA initially had produced no record to support that finding. Rutherford v. United States, 542 F.2d 1137, 1143 (10th Cir. 1976), rev'd, 442 U.S. 544. After the Tenth Circuit upheld the district court's injunction in favor of the plaintiffs, the FDA held hearings and ultimately determined, again, that Laetrile was a new drug that had not been proven safe and effective. Rutherford, 442 U.S. at 549.
148. Rutherford v. United States, 616 F.2d 455, 457 (10th Cir. 1980).
149. Carnohan v. United States, 616 F.2d 1120, 1122 (9th Cir. 1980).
150. 429 U.S. 589 (1977).
151. Id. at 592-93, 595.
152. Id. at 600, 599-600.
153. Id. at 603.
154. Id. at 603 & n.30.
155. Specifically, the Court stated, "Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication." Id. at 603. It is thus unclear whether the Court recognized such a right but found that it had not been burdened in the instant case, or whether the Court remained agnostic as to the existence of such a right.
156. Cf. Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921) ("There can be no question of the authority of the State in the exercise of its police power to regulate . . . dangerous and habit-forming drugs . . . . The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.").
157. See, e.g., Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 445 F.3d 470, 480 (D.C. Cir. 2006) (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *125, *130) ("A right of control over one's body has deep roots in the common law."), rev'd en banc, 495 F.3d 695 (D.C. Cir. 2007); In re Cincinnati Radiation Litig., 874 F. Supp. 796, 816-18 (S.D. Ohio 1995) (outlining U.S. Supreme Court decisions regarding the right to be free from unwanted bodily intrusions dating back to 1884).
158. U.S. CONST. amend. IV; see Winston v. Lee, 470 U.S. 753, 755 (1985) (holding that a compelled surgical intrusion into an individual's body for evidence would violate that individual's "right to be secure in his person" and be "unreasonable" under the Fourth Amendment).
159. U.S. CONST. amend. VIII; see Whitley v. Albers, 475 U.S. 312, 327 (1986) (characterizing the Eighth Amendment as "specifically concerned with the unnecessary and wanton infliction of pain in penal institutions" and as "the primary source of substantive protection to convicted prisoners" in cases involving excessive force).
160. See Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (stating that the common law carefully guards the right of every individual "to the possession and control of his own person").
161. U.S. CONST. amend. XIV; see Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that the Court has held "the 'liberty' protected by the Due Process Clause [of the Fourteenth Amendment] includes the right[] . . . to bodily integrity").
162. 141 U.S. 250 (1891).
163. Id. at 251.
164. Id.
165. Id.
166. Id.
167. Thus, the autonomy cases ultimately gave rise to Lawrence v. Texas, 539 U.S. 558 (2003), which intertwines dignity and equality concerns. See id. at 575 ("Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests."). See generally Tribe, supra note 74, at 1902-07 (discussing Lawrence's synthesis of substantive-due-process and equal protection concerns).
168. One might view Skinner v. Oklahoma ex rel. Williamson. 316 U.S. 535 (1942) as the true progenitor of Griswold and the other privacy cases, but Skinner, like the line of prisoner bodily integrity cases, including Washington v. Harper, 494 U.S. 210 (1990) (upholding forced antipsychotic treatment of a prisoner who was dangerous to himself and others, where medically appropriate); Riggins v. Nevada, 504 U.S. 127 (1992) (rejecting mandatory antipsychotic treatment of the defendant during trial where necessary findings were not made); and Sell v. United States, 539 U.S. 166 (2003) (holding that forced administration of antipsychotic drugs to defendants awaiting trial was permissible if the defendant was dangerous and treatment was medically appropriate), is not discussed here because, while relevant, it involves government-imposed harm and bodily invasion, which is quite different from a governmental attempt to prohibit access to a medication or treatment sought by an individual. Cf. Rochin v. California, 342 U.S. 165 (1952) (holding that forced stomach pumping of an arrested person to obtain evidence of illegal drug possession violated the Due Process Clause); In re Cincinnati Radiation Litig., 874 F. Supp. 796 (S.D. Ohio 1995) (holding that the ability to pursue a wrongful-death claim based on radiation experiments conducted on cancer patients without their consent is a property interest protected by the Due Process Clause of the Fourteenth Amendment). See generally Gelman, supra note 85 (discussing the "biological alteration" cases). In addition, Harper, Riggins, and Sell were decided under the less strict standard of Turner v. Safley, 482 U.S. 78 (1987), for evaluating infringements on the liberty of prisoners. See Sell, 539 U.S. at 179-82 (applying the standard previously applied in Harper, 494 U.S. at 223-25, and Riggins, 504 U.S. at 134-35); Riggins, 504 U.S. at 134-35 (applying the standard previously applied in Washington v. Harper, 494 U.S. at 223-25); Harper, 494 U.S. at 223-25 (applying the standard from Turner v. Safley, 482 U.S. at 89). Nonetheless, the lack of deference to the legislature's findings of medical fact in Skinner, for example, is noteworthy. See Skinner, 316 U.S. at 542 ("We have not the slightest basis for inferring that [the line drawn by the statute allowing sterilization of criminals convicted of larceny but not embezzlement] has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses."). This lack of deference may be contrasted with the Court's deferential stance in Buck v. Bell. See Buck v. Bell, 274 U.S. 200, 205, 207 (1927) (showing deference to the legislature's findings that a "feeble minded" woman should be sterilized). See generally Lombardo, supra note 108 (discussing Skinner and Buck and tracing the origins of the reproductive-rights cases to those cases, as well as Loving v. Virginia, 388 U.S. 1 (1967)). Finally, it is interesting to note that even in the prisoner line of cases, the forced medication must be "medically appropriate" in order to be constitutional, suggesting that a prisoner might have a right to refuse antipsychotic treatment that would harm his health. See, e.g., Harper, 494 U.S. at 222-23, 222 & n.8 (discussing the requirement of medical appropriateness).
169. Griswold v. Connecticut, 381 U.S. 479, 480 (1965) (emphasis omitted).
170. Id. at 482 (emphasis added).
171. See id. at 503 (White, J., concurring) (noting that the statute "forbids all married persons the right to use birth-control devices, regardless of whether their use is dictated by considerations of family planning, health, or indeed even of life itself (citation omitted)); Mary L. Dudziak, Just Say No: Birth Control in the Connecticut Supreme Court Before Griswold v. Connecticut, 75 IOWA L. REV. 915, 921-27 (1990) (describing the impact that health concerns had on the development of Connecticut state law governing the use of birth control).
172. Dudziak, supra note 153, at 918.
173. Id. at 932.
174. Id. at 932-35.
175. 405 U.S. 438 (1972).
176. Id. at 442. Under the Massachusetts law, anyone - married or single - could obtain contraceptives from anyone - not just from doctors or pharmacists - for the purpose of preventing the spread of disease. Id.
177. Id. at 453.
178. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 857 (1992) (discussing the role of similar reasoning in Brennan's Griswold opinion in conceptualizing the privacy and birth-control cases that followed it).
179. DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE 518-19 (1994).
180. Eisenstadt, 405 U.S. at 460-65 (White, J., concurring); id. at 465-72 (Burger, C.J., dissenting).
181. Id. at 469 (Burger, C.J., dissenting).
182. Id. at 452 (majority opinion) ("We conclude, accordingly, that, despite the statute's superficial earmarks as a health measure, health, on the face of the statute, may no more reasonably be regarded as its purpose than the deterrence of premarital sexual relations."). David Garrow notes that the strategy of the ACLU, which filed an amicus brief on behalf of Baird, was to keep the focus on the privacy issue. GARROW, supra note 161, at 517-18.
183. See Eisenstadt, 405 U.S. at 447, 446-56 (discussing how, under the Equal Protection Clause analysis, no ground of difference "rationally explains the different treatment accorded married and unmarried persons" by Massachusetts law).
184. Id. at 463-64 (White, J., concurring).
185. Id. at 464.
186. Id. at 469 (Burger, C.J., dissenting).
187. Id. at 470.
188. See supra notes 42, 59-63 and accompanying text. In addition, the end of Chief Justice Burger's opinion prophetically raises the specter of the Laetrile cases of the 1970s and 1980s. Eisenstadt, 405 U.S. at 472. The Chief Justice noted: I am constrained to suggest that if the Constitution can be strained to invalidate the Massachusetts statute underlying appellee's conviction, we could quite as well employ it for the protection of a "curbstone quack," reminiscent of the "medicine man" of times past, who attracted a crowd of the curious with a soapbox lecture and then plied them with "free samples" of some unproved remedy. Massachusetts presumably outlawed such activities long ago, but today's holding seems to invite their return.
189. Id.
190. 410 U.S. 179 (1973).
191. See, e.g., Roe v. Wade, 410 U.S. 113, 153 (1973) (cataloguing the physical and psychological harms that may result from carrying a pregnancy to term); id. at 164 (holding that in the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician"); Doe, 410 U.S. at 197 (mentioning the "woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it"); see also, e.g., LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 13 (1990) (noting that Justice Blackmun had served as counsel to the Mayo Clinic prior to his appointment to the Supreme Court and suggesting that he may have been influenced by his medical background to focus the opinion on physicians rather than women's equality);
192. cf. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1199-1200 (1992) (contrasting Roe's emphasis on the physician's judgment with Casey's emphasis on sex equality). A recent, thoughtful article calls the commonly held view that Justice Blackmun was influenced by his health-law background into question, however.
193. Nan D. Hunter, Justice Blackmun, Abortion, and the Myth of Medical Independence, 72 BROOK. L. REV. 147, 170 (2006) ("Yet it is apparent from his papers that Justice Blackmun brought no conscious agenda to this issue; indeed, he seems to have given it very little thought prior to joining the Court.").
194. Doe, 410 U.S. at 213 (Douglas, J., concurring) (emphasis omitted).
195. Id. at 219.
196. Id. at 215.
197. See Brief for Appellants at *94, *94-98, Roe, 410 U.S. 113 (No. 70-18), 1971 WL 128054 (arguing that "The Right to Seek and Receive Medical Care for the Protection of Health and Well-Being Is a Fundamental Personal Liberty Recognised by Decisions of This Court" and that Jacobson permitted interference with that right only in the face of a compelling state interest); see also Hunter, supra note 172, at 171-72 ("The substantive argument in the appellants' brief began with an assertion of a right to seek and receive medical care . . . .").
198. Roe, 410 U.S. at 164, 163-64.
199. See Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 769 (1986) (observing that the Court had previously "recognized the undesirability of any 'trade-off between the woman's health and additional percentage points of fetal survival" and that the State did "not take any real issue with this proposition").
200. See David B. Cruz, "The Sexual Freedom Cases"? Contraception, Abortion, Abstinence, and the Constitution, 35 HARV. C.R.-C.L. L. REV. 299, 313-14 (2000) (noting that Casey properly explicated the constitutional foundation of the reproductive rights cases in terms of a right to autonomy in making certain important personal decisions).
201. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
202. Id. at 857.
203. See Washington v. Glucksberg, 521 U.S. 702, 722-26 (1997).
204. Id. at 723.
205. See id. at 725; Michael P. Allen, The Constitution at the Threshold of Life and Death: A Suggested Approach to Accommodate an Interest in Life and a Right to Die, 53 AM. U. L. REV. 971, 986 (2004) (noting that the Supreme Court "has been less than crystal clear" in its pronouncements on the right to refuse life-saving medical treatment but that the Court most likely would accept the existence of such a fundamental right).
206. Glucksberg, 521 U.S. at 720-22 (citing Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990)); id. at 753 (Souter, J., concurring) (noting that plaintiffs sought to obtain "medications . . . to be self-administered for the purpose of hastening . . . death" (omissions in original) (quoting Complaint ¶ 2.3, Compassion in Dying v. Washington, 850 F. Supp. 1454 (W.D. Wash. 1994) (No. C94-119R))).
207. Id. at 736, 736-37 (O'Connor, J., concurring).
208. See, e.g., Yale Kamisar, On the Meaning and Impact of the Physician-Assisted Suicide Cases, 82 MINN. L. REV. 895, 908 (1998) (noting evidence that five members of the Court would likely recognize a right to obtain death-inducing medication in order to alleviate suffering). This view is based on the fact that Justice O'Connor's concurrence, which was joined by Justices Ginsburg and Breyer, noted that the plaintiffs in the Glucksberg case had access under state law to obtain sufficient palliative care and that the Court therefore did not need to decide whether patients had a right to be relieved from suffering by receiving sufficient palliative care, even if that palliation might hasten death. Glucksberg, 521 U.S. at 736-38 (O'Connor, J., concurring). Justices Stevens, Breyer, and Souter, concurring separately, offered similar or even more expansive views of that purported constitutional right. See id. at 745 (Stevens, J., concurring); id. at 779-82 (Souter, J., concurring); id. at 791-92 (Breyer, J., concurring).
209. But see Norman L. Cantor, On Kamisar, Killing, and the Future of Physician-Assisted Death, 102 MICH. L. REV. 1793, 1835 (2004) ("The legal status of terminal sedation is still unclear." (citing Norman L. Cantor & George C. Thomas III, The Legal Bounds of Physician Conduct Hastening Death, 48 BUFF. L. REV. 83, 142-50 (2000))).
210. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990).
211. Glucksberg, 521 U.S. at 723. Acknowledging that Cruzan had viewed the right to refuse unwanted life-saving treatment as just such a "liberty interest," id., Chief Justice Rehnquist then noted that while the right to end one's life may be "just as personal and profound as the decision to refuse unwanted medical treatment," id. at 725, it is not similarly protected; although "many of the rights and liberties protected by the Due Process Clause sound in personal autonomy," that did not mean "that any and all important, intimate, and personal decisions are so protected." Id. at 727.
212. 498 F. Supp. 1038 (S.D. Tex. 1980).
213. Id. at 1057.
214. Id. at 1048.
215. Id. at 1041, 1044.
216. Id. at 1046-51 (citing Carey v. Population Servs. Int'l, 431 U.S. 678 (1977)). The Andrews court also recognized, however, that it would be permissible for the state to regulate the practice of acupuncture, including by requiring diagnosis or referral by a licensed physician. Id. at 1056. The court thus did not recognize an unqualified right of patients to receive the treatment of their choice. See also Sammon v. N.J. Bd. of Med. Exam'rs, 66 F.3d 639, 647 (3d Cir. 1995) (asserting that individuals have "no constitutional right to their choice of a health care provider [i.e., a midwife] who does not meet quality control standards that a legislator might reasonably conceive to be desirable"); Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) (rejecting patients' claim of a constitutional right to receive acupuncture treatment from a nonphysician).
217. Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 445 F.3d 470, 472 (D.C. Cir. 2006), rev'd en banc, 495 F.3d 695 (D.C. Cir. 2007); see Jerome Groopman, The Right to a Trial, NEW YORKER, Dec. 18, 2006, at 40, 42 (noting that the opinion "shocked legal scholars and officials at the F.D.A.").
218. Abigail Alliance, 445 F.3d at 478.
219. Id. at 479-86. The court distinguished the medical-marijuana cases on the ground that the Supreme Court had never decided the substantive-due- process issues raised in OCBC and Raich, id. at 478 n.9, and it distinguished the Laetrile cases on the ground that those cases involved the "governmental interest in protecting public health" and that no evidence showed Laetrile to be safe, as the cancer drugs here were initially determined to be, see id. at 486 (quoting Rutherford v. United States, 616 F.2d 455, 457 (10th Cir. 1980)).
220. Id. at 487, 486-87 (Griffith, J., dissenting).
221. Id. at 491.
222. Id. at 499.
223. Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007) (en banc).
224. Id. at 703.
225. Id. at 701.
226. See, e.g., id. at 709 (finding no "constitutional right to override the collective judgment of the scientific and medical communities expressed through the FDA's clinical testing process").
227. Id. at 710 & n.18.
228. Id. at 714-15 (Rogers, J., dissenting).
229. Smith v. Shalala, 954 F. Supp. 1, 2 (D.D.C. 1996); see also Kulsar v. Ambach, 598 F. Supp. 1124, 1125-26 (W.D.N.Y. 1984) (relying on Rutherford and Carnohan to reject plaintiffs' claim of constitutional right to access a hypoglycemia drug that the FDA had pulled from the market).
230. 37 F. Supp. 2d 717 (E.D. Pa. 1999).
231. Id. at 725-27.
232. Id. at 726, 726-27.
233. Id. at 727. The court also stated that it did "not wish to minimize the suffering that the plaintiffs have experienced or the degree to which the threat of criminal sanctions may have exacerbated their conditions," but that "[w]here reasonable people may differ, the court is bound to defer to the will of the legislature." Id. at 731.
234. 940 P.2d 604 (Wash. 1997) (en banc).
235. Id. at 618.
236. Id. at 618-19.
237. Id. at 626 (Sanders, J., dissenting) ("I find the analysis in Casey as well as its antecedent, Roe v. Wade, wholly dispositive in Mr. Seeley's favor." (citation omitted)).
238. Id. at 627.
239. See id. at 624 (criticizing the State's taking a "larger focus" on the citizenry at large, which must be protected from drug abuse and the unknown effects of marijuana).
240. 591 P.2d 919 (Cal. 1979).
241. Id. at 926.
242. Id. at 925.
243. Id. at 926, 924-26.
244. Id. at 927 (Bird, C.J., dissenting).
245. Id. at 923-36.
246. Id. at 946.
247. On occasion, as in Rutherford and Carnohan, courts distinguish between an established constitutional right to receive treatment and a nonexistent constitutional right to a particular treatment. Yet it is difficult to perceive such a distinction in the case law - the abortion cases, for example, draw no such distinction - and it is difficult to see how such a distinction can be clearly made in reality. If the only treatment legally available is ineffective for the particular individual, for instance, can it truly be said that the individual's right to medical treatment has been vindicated?
248. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 331 (1990) (Stevens, J., dissenting).
249. Id. at 347.
250. Michael Allen refers to this distinction as the (state's) "comprehensive interest" in human life, Allen, supra note 184, at 990, as opposed to the individual's "focused interest," id. at 989. See also Parmet, Health Care, supra note 89, at 270 (noting that constitutional cases dealing with health care all "question the relationship between the body politic and individuals who are facing the reality of physical vulnerability and, ultimately, biological mortality").
251. 18 U.S.C. § 1531 (2000 & Supp. V 2006).
252. See id.
253. Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, § 2(14)(B), 117 Stat. 1201, 1204.
254. Id. § 2(1).
255. Id. § 2(3)-(12).
256. See, e.g., Joanna Grossman & Linda McClain, New Justices, New Rules: The Supreme Court Upholds the Federal Partial-Birth Abortion Ban Act of 2003, FINDLAW'S WRIT, May 1, 2007, http://writ.news. findlaw.com/commentary/20070501_mcclain.html.
257. Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610, 1627 (2007).
258. Id. at 1632; id. at 1651 (Ginsburg, J., dissenting).
259. Id. at 1638 (majority opinion).
260. Id. at 1635.
261. Id. at 1638-39; see also id. at 1651-52 (Ginsburg, J., dissenting).
262. Id. at 1634 (majority opinion); see. e.g., Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 EMORY L.J. 815, 837-38 (2007) (describing Justice Ginsburg's criticism of the majority's decision based on its disrespect for women's autonomy).
263. See Carhart II, 127 S. Ct. at 1648-49 (Ginsburg, J., dissenting) ("The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately . . . . Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.").
264. See. e.g., GOSTIN, supra note 77, at 91, 90-91 (noting that paternalistic regulation is sometimes justified by the fact that "individuals have cognitive limits;" that is, they "frequently make choices without full information about the risks"); cf. Siegel, supra note 240, at 837-38 (discussing the "woman-protective" language in Carhart II); Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. ILL. L. REV. 991, 1030 (observing, prior to Carhart II, that some "woman-protective" abortion restrictions were justified in the "language of public health (i.e., abortion is a bad choice)"). Carhart II's language may be contrasted with the antipaternalistic tone struck by the Court in Thompson v. Western States Medical Center, 535 U.S. 357, 374, 374-75 (2002) (rejecting as invalid the Government's concern "that people would make bad decisions if given truthful information about" certain prescription drugs). Although that case dealt with regulation of prescription drugs - a traditional area of public-health concern - the Court struck down Congress's restrictions on advertising of compound drugs under the First Amendment. Id.
265. Carhart II, 127 S. Ct. at 1633.
266. Id. Indeed, the Court began part IV of its opinion by explaining that the PBABA would be unconstitutional if it had either the purpose or the effect of imposing an undue burden on women seeking abortions. Id. at 1632. Part IV(A) proceeds to analyze the purpose prong, whereas part IV(B) analyzes the effects prong. Id. at 1632-35.
267. See Stenberg v. Carhart (Carhart I), 530 U.S. 914, 968 (2000) (Kennedy, J., dissenting).
268. Carhart II, 127 S. Ct. at 1637.
269. Id.
270. Id.
271. See, e.g., Adam Hoffman, Note, Corralling Constitutional Fact: De Novo Fact Review in the Federal Appellate Courts, 50 DUKE L.J. 1427, 1453 (2001) ("The area of the law to which the doctrine of constitutional fact has been most consistently applied is the First Amendment.").
272. Carhart II, 127 S. Ct. at 1638.
273. Id. at 1635.
274. Id. at 1637 (emphasis added).
275. Id. at 1638. Justice Ginsburg's dissent takes issue with the notion that such evidence cannot be dealt with in a facial challenge, and she notes that the record in the instant case contained detailed discussions of such medical conditions and the risk that would result from using an alternate procedure. Id. at 1652 (Ginsburg, J., dissenting).
276. See id. at 1637 (majority opinion) ("The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.").
277. See supra note 60.
278. Cf. Borgmann, supra note 71, at 699-700 (discussing the potential negative effects of language in Casey that "seemed to subsume the medical emergency exception within the undue burden test").
279. Carhart II, 127 S. Ct. at 1638 ("The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used." (citation omitted)).
280. See Transcript of Oral Argument at 22-23, Carhart II, 127 S. Ct. 1610 (No. 05-380) (discussing a hypothetical as-applied challenge based on the necessity of the D&X procedure to treat preeclampsia); see also Stenberg v. Carhart (Carhart I), 530 U.S. 914, 929 (2000) ("The materials presented at trial referred to the potential benefits of the D&X procedure in circumstances involving nonviable fetuses, such as fetuses with abnormal fluid accumulation in the brain (hydrocephaly).").
281. Perhaps this reading of Carhart II, which takes the Court's language at face value, is overly optimistic. In Casey, the Court declined to strike down a law imposing a twenty-four-hour waiting period, and the plurality emphasized that the particular record before the district court had been insufficient. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 887 (1992). There was, however, extensive evidence in the record of the requirement's unduly burdensome nature. See Borgmann, supra note 71, at 683 & n.62. Moreover, although Justice Blackmun, in dissent, took comfort in the notion that the Court had left open the possibility of future challenges on a different or more complete record, see Casey, 505 U.S. at 926, 938 n.9 (Blackmun, J., concurring in part and dissenting in part), no waiting-period law has ever been permanently struck down by the federal courts after Casey. There is thus reason to believe that a subsequent as-applied challenge to a D&X ban would meet the same fate. Additionally, as Justice Ginsburg pointed out at oral argument, it may not always be possible to generalize about the situations in which a health exception is needed; sometimes it may depend on the particular woman's overall health picture, or on the doctor's skill and comfort level with certain procedures. Transcript of Oral Argument, supra note 258, at 23-24.
282. Cf. Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328-32 (2006) (seeking a narrowly crafted remedy on remand rather than invalidating a New Hampshire abortion regulation statute in its entirety).
283. Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. 1813, 1824 (2007). Volokh also notes that a woman possesses this right even when her health - and not her life - is at stake. Id. at 1824 n.53.
284. Casey, 505 U.S. at 851; see Cruz, supra note 179, at 313-14 (describing Casey as offering "a better explication of [the abortion] right's constitutional foundation").
285. Casey, 505 U.S. at 852, 852-53.
286. Susan Frelich Appleton, Unraveling the "Seamless Garment": Loose Threads in Pro-Life Progressivism, 2 U. ST. THOMAS L.J. 294, 299, 299-300 (2005). Others have made this argument, perhaps most famously Judith Jarvis Thomson.
287. See Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971). I am indebted to Professor Appleton for encouraging me to address this line of argument.
288. See GOSTIN, supra note 77, at 85 ("Public health regulation entails potential trade-offs between public goods and private interests."); cf. Burris, supra note 90, at 933 (defining "public health law" broadly as "cases concerning state action taken in the name of preventing ill health or promoting good health").
289. Cf. CHRISTOPHER G. TIEDEMAN, A TREATISE ON THE LIMITATIONS OF THE POLICE POWER IN THE UNITED STATES 205 (St. Louis, F.H. Thomas Law Book Co. 1886). Tiedeman articulated the limitations of the state's police powers in the public health context as follows: [T]he police power of the State can never be exercised in favor of, or against any system of medicine. The police power can be brought to bear upon quacks, and disreputable practitioners, to whichever school they may belong, but when reputable and intelligent members of the profession differ in theories of practice, the State has no power to determine which of them, if either, is wrong. Id.
290. See, e.g., Asa Hutchinson, An Effective Drug Policy to Protect America's Youth and Communities, 30 FORDHAM URB. L.J. 441, 454-56 (2003) (detailing some of the harms resulting from illegal drugs). But cf. Conant v. McCaffrey, 172 F.R.D. 681, 694 n.5 (N.D. Cal. 1997) ("It is unreasonable to believe that use of medical marijuana by this discrete population for this limited purpose will create a significant drug problem."); Noah, supra note 42, at 57 (suggesting that the FDA may be overly concerned about patients' use of controlled substances, as when it has approved painkillers with serious and potentially fatal side effects because they will substitute for narcotics that would otherwise be prescribed). One might also argue that it is the prohibition of drugs, and not the drugs themselves, that leads to violence and crime.
291. But see Meyer, supra note 74, at 1171, 1171-72 (arguing that the Court's opinion in Carhart I "must rest upon a[n] . . . unstated judgment about the relative weight of the competing interests").
292. Stenberg v. Carhart (Carhart I), 530 U.S. 914, 937 (2000).
293. E.g., United States v. Osburn, No. C 02-939 AHM, 2003 U.S. Dist. LEXIS 8607, at *5-6 (C.D. Cal. Apr. 15, 2003) ("Defendants have not established that they have any protected, fundamental right to the choice of a particular treatment or medicine."); Raich v. Ashcroft, 248 F. Supp. 2d 918, 927-28 (N.D. Cal. 2003) ("While plaintiffs may vehemently disagree with the wisdom of the federal government's determination that marijuana has no medical efficacy . . . they do not have a fundamental, constitutional right to obtain and use it for treatment."); United States v. Cannabis Cultivator's Club, No. C 98-00085 CRB, 1999 WL 111893, at *2, *1-3 (N.D. Cal. Feb. 25, 1999) ("[T]here is no constitutional right to obtain medication free from the lawful exercise of the government's police powers.").
294. See also Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 469 F.3d 129, 138 (D.C. Cir. 2006), rev'd en banc, 495 F.3d 695 (D.C. Cir. 2007) (emphasizing that the court, in recognizing terminally ill plaintiffs' right to choose certain medications, has not "prejudge[d] whether the FDA policy challenged here outweighs the Alliance members' interests in self-determination; we require further inquiry by the district court on remand as to the FDA's countervailing interests"); Abigail Alliance, 495 F.3d at 716 (Rogers, J., dissenting) ("[T]he claimed fundamental right is to attempt to preserve one's life; whether the risks associated with doing so justify restraining that right is properly considered only after the right is deemed fundamental.").
295. See Carhart I, 530 U.S. at 937 ("[A] significant body of medical opinion believes [the] procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view . . . .").
296. Eisenstadt v. Baird, 405 U.S. 438, 468 (1972) (Burger, C.J., dissenting). The Chief Justice argued: It is possible, of course, that some members of the Massachusetts Legislature desired contraceptives to be dispensed only through medical channels in order to minimize their use, rather than to protect the health of their users, but I do not think it is the proper function of this Court to dismiss as dubious a state court's explication of a state statute absent overwhelming and irrefutable reasons for doing so. Id.
297. Another possibility is that the Court has treated drugs differently from surgical interventions, perhaps because of the FDA's authority to regulate drugs or because of the view that regulating surgical interventions intrudes too much into the doctor-patient relationship. As several commentators have noted, surgery is subject to far less legal regulation than drugs. See, e.g., Amer S. Ahmed, Note, The Last Twist of the Knife: Encouraging the Regulation of Innovative Surgical Procedures, 105 COLUM. L. REV. 1529, 1530-32, 1532 n.17 (2005) (citing sources comparing surgery regulation with drug regulation). It is not apparent that there is any good reason behind this discrepancy, however. See id. at 1531 (describing the difference in treatment as "a legal oddity"). In addition, at least some kinds of drugs, such as contraceptives and perhaps drugs needed for aggressive palliative care, have been treated by the Supreme Court under the autonomy line of cases and thus as subject to more limited government regulation.
298. Volokh, supra note 261, at 1815-18.
299. See id. at 1818 & n.17 (noting that Justice Scalia authored a plurality opinion suggesting that there is a substantive-due-process right to self-defense (citing Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (plurality opinion))).
300. John A. Robertson, Embryo Culture and the "Culture of Life": Constitutional Issues in the Embryonic Stem Cell Debate, 2006 U. CHI. LEGAL F. 1, 7-15. This Article, too, argues only that there is a negative, not positive, right to make medical treatment choices - that is, it asserts that there is a right against government interference with medical decision making but does not mean to suggest that there is a right to have government-financed access to medical treatment.
301. On the distinction between negative and positive rights, see Cass R. Sunstein, A New Progressivism, 17 STAN. L. & POL'Y REV. 197, 206, 206-07 (2006) (distinguishing between "barriers to government action" and "entitlements to government protection").
302. See also Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 327 (2006) (noting that the state did not dispute the constitutional requirement that minors have access to abortion when necessary to preserve their life or health); Michael C. Dorf, The Supreme Court's Surprisingly Unanimous Abortion Decision: A Parting Gift for Justice O'Connor?, FINDLAW'S WRIT, Jan. 30, 2006, http://writ.findlaw.com/dorf/20060130.html (arguing, in discussing Ayotte v. Planned Parenthood, that a minor woman "has a constitutional right to be free of state regulation that effectively subjects her to a serious risk of losing a limb," suggesting that even Justices Scalia and Thomas might agree, and further observing that even if Roe v. Wade were overruled, there would still be a genuine constitutional question of whether an abortion prohibition without a health exception would be constitutional).
303. See supra notes 128-32 and accompanying text.
304. Whalen v. Roe, 429 U.S. 589, 603 (1977).
305. See Mariner et al., supra note 107, at 587 ("During the past decade, the Court has been reluctant to recognize constitutional protection for new aspects of liberty."); Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process Since Lawrence v. Texas, 105 MICH. L. REV. 409, 428-29, 430 (2006) (concluding, from a review of cases citing Glucksberg and Lawrence, that there is a strong judicial reluctance to recognize new constitutional rights). Other commentators have made the argument that the Court should recognize an individual substantive-due-process right to access specific medical treatments, such as medical marijuana or treatments resulting from embryonic-stem-cell research. See, e.g., Robertson, supra note 277, at 7-15 (arguing that there is a constitutional right to access embryonic-stem-cell-derived medical therapies);
306. Matthew Segal, Note, Overdue Process: Why Denial of Physician-Prescribed Marijuana to Terminally Ill Patients Violates the United States Constitution, 22 SEATTLE U. L. REV. 235, 237 (1998) (arguing that laws denying medicinal marijuana "violate[] the Due Process Clauses of the Fifth and Fourteenth Amendments");
307. Note, Last Resorts and Fundamental Rights: The Substantive Due Process Implications of Prohibitions on Medical Marijuana, 118 HARV. L. REV. 1985, 1985 (2005) ("[A] law completely banning the use of marijuana will, as applied to some patients, infringe upon an array of fundamental rights . . . .").
308. Perhaps the fact that courts generally apply the overly formalistic analysis set out in Glucksberg, according to which they must both engage in a "careful description of the asserted fundamental liberty interest," Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)), and determine whether that interest is "deeply rooted in this Nation's history and tradition," id. (quoting Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977)), and "implicit in the concept of ordered liberty," id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)), generally resulting in a very narrow view of the rights that are protected by substantive due process, has caused courts to overlook the right to autonomy in medical treatment choices that clearly runs through Supreme Court jurisprudence. Interestingly, courts have continued to apply the Glucksberg analysis, although the Supreme Court apparently abandoned it in Lawrence v. Texas. See generally Hawkins, supra note 281, at 411 (chronicling the lower courts' continued application of the Glucksberg test in 102 cases decided since Lawrence).
309. Nor, as I discuss below, does it mean that the FDA's authority must be decimated or that drug manufacturers will be free to stimulate demand without regulation. But see Peter D. Jacobson & Wendy E. Parmet, A New Era of Unapproved Drugs: The Case of Abigail Alliance v. von Eschenbach, 297 JAMA 205, 207 (2007) ("If access to experimental drugs is considered a fundamental right, the FDA's regulatory authority is inevitably diminished, as is its ability to conduct premarket review of new pharmaceuticals for safety and effectiveness.").
310. The notion of "burden" as part of the substantive-due-process analysis is familiar from Casey, which instituted the "undue burden" standard for determining when a government regulation actually strikes at the heart of the abortion right. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992). In addition, the notion of burden, or "magnitude of the disadvantage," has long played an important role, sometimes acknowledged and sometimes unacknowledged, in the "fundamental rights" strain of equal protection analysis. See Gary J. Simson, A Method for Analyzing Discriminatory Effects Under the Equal Protection Clause, 29 STAN. L. REV. 663, 673, 673-75 (1977) (discussing cases in which the Burger Court implicitly incorporated a "magnitude of the disadvantage" calculus into equal protection decisions).
311. Cf. Whalen, 429 U.S. at 598-604 (holding that a registration requirement does not pose a serious threat to a patient's right to make important medical decisions independently).
312. Again, it is possible that the Glucksberg framework encourages this short-circuiting, since it forces courts to focus on narrowly articulating the specific constitutional right that is being claimed and then determining whether that right is supported by tradition and history. In the context of claims to autonomy in medical treatment decisions, this process shifts focus away from the medical and scientific questions such as safety, efficacy, and medical necessity.
313. David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 553-64 (1991).
314. I am here referring to "legislative facts," a term famously coined by Professor Kenneth Culp Davis in an article entitled An Approach to Problems of Evidence in the Administrative Process, 55 HARV. L. REV. 364 (1942). Legislative facts, according to Davis, are "the facts which inform . . . legislative judgment," in contrast to "adjudicative facts," which are "facts concerning immediate parties - what the parties did, what the circumstances were, what the background conditions were," and so on. Id. at 402. Confusingly, some commentators use the term "legislative facts" interchangeably with "constitutional facts" when discussing constitutional cases, see, e.g., Faigman, supra, at 552-53, and others distinguish between the two, see, e.g., Hoffman, supra note 249, at 1434-35 (treating constitutional facts as a type of adjudicative fact).
315. Lochner v. New York, 198 U.S. 45 (1905), overruled in part by Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952) and Ferguson v. Skrupa, 372 U.S. 726 (1963).
316. See, e.g., Faigman, supra note 287, at 559-64, 562 n.73, 564 n.86. It is interesting to note that this debate in Lochner took place in the context of what was considered a "public health" measure.
317. See, e.g., DAVID L. FAIGMAN, LABORATORY OF JUSTICE: THE SUPREME COURT'S 200-YEAR STRUGGLE TO INTEGRATE SCIENCE AND THE LAW 364 (2004) (noting that despite the passage of time, the Court remains inconsistent in deciding "under what circumstances [it] should be deferential to legislatures").
318. Id.
319. Note, Deference to Legislative Fact Determinations in First Amendment Cases after Turner Broadcasting, 111 HARV. L. REV. 2312, 2315-16 (1998). While lack of deference is often associated with heightened scrutiny in constitutional doctrine and a high degree of deference with rational basis review, this association has not been consistent. Thus, my argument that the right to make autonomous medical treatment choices is a constitutionally protected right does not necessarily imply a lack of deference to legislative fact-finding; this nondeference must be justified independently. Compare, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195-208 (1997) (deferring to Congressional fact-finding in an intermediate-scrutiny context), with Schad v. Borough of Mount Ephraim, 452 U.S. 61, 72-74 (1981) (refusing to defer to a local government's fact-finding where that government failed to provide evidence of harms of nude dancing).
320. See generally Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 IOWA L. REV. 941, 961-62 (1999) (noting that courts often defer to other decision makers even when fundamental rights protected by heightened scrutiny are at stake);
321. Harper Jean Tobin, Confronting Questionable Abortion Information: Informed Consent, Deference, and Fetal Pain Laws, 16 COLUM. J. GENDER & L. (forthcoming 2008) (manuscript at 25, on file with author) (asserting that deference to legislative fact-finding has a role in factually close issues). Although it may well be a good rule that courts should not defer to legislatures whenever constitutional rights are at stake, I do not take a position on that question here, as it is beyond the scope of this Article. Cf. Note, supra, at 2316-23 (arguing that deference is inconsonant with First Amendment norms such as judicial primacy and the need for accurate decision making when important individual rights, requiring protection from the majority, are at stake). I simply argue that such nondeference is not the current state of the law.
322. See, e.g., Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 DUKE L.J. 1169, 1178 (2001) (noting the traditional argument that "Congress has numerous advantages over the courts in pursuing information. Legislatures, as compared to courts, 'have substantial staff, funds, time and procedures to devote to effective information gathering and sorting.'"
323. (quoting Robin Charlow, Judicial Review, Equal Protection and the Problem with Plebiscites, 79 CORNELL L. REV. 527, 578 (1994)));
324. see also Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 YALE L.J. 1707, 1740 (2002) ("A wide variety of resources, unmatched by any other legislature of the world, are at the disposal of members [of Congress] and their committees.").
325. Devins, supra note 293, at 1169-70, 1179.
326. Id. at 1180; cf. A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684, 688, 688-89 (7th Cir. 2002) (describing issues of legislative fact as being decided "at the level of logic" and for "the nation as a whole").
327. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 728-32 (2003) (discussing the extensive statistical and testimonial record before Congress of widespread gender discrimination in family-leave policies as a basis for passage of the Family and Medical Leave Act).
328. See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 398-99 (1937) (upholding Washington's minimum-wage law for women in deference to state legislative findings that the law was necessary for protecting the health of female workers).
329. See Jonathan L. Entin, Innumeracy and Jurisprudence: The Surprising Difficulty of Counting Petition Signatures, 33 JURIMETRICS J. 223, 243 & n.55 (1993) (observing that there actually has been an attempt to legislate the value of pi).
330. But cf. Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111, 119 (1988) (arguing that legislative fact-finding is value driven and that "this is true even for the hard sciences," but acknowledging that it is "especially true for the soft sciences").
331. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 33, 33-34 (1976) (internal quotation marks omitted) (quoting United States v. Gainey, 380 U.S. 63, 67 (1965)).
332. Marshall v. United States, 414 U.S. 417, 427 (1974).
333. Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610, 1636 (2007).
334. Stenberg v. Carhart (Carhart I), 530 U.S. 914, 970-72 (2000) (Kennedy, J., dissenting).
335. Devins, supra note 293, at 1183-84.
336. See id. at 1184-85 (explaining that lawmakers revisit prior legislation only when there is organized interest group pressure to do so and that even then inertia and other obstacles often prevent reform); cf. Rachael N. Pine, Speculation and Reality: The Role of Facts in Judicial Protection of Fundamental Rights, 136 U. PA. L. REV. 655, 726-27 (1988) (arguing that adherence to precedent should not bind courts to follow prior cases upholding a statute when legislative facts previously essential to its constitutionality have changed or their falsehood has become demonstrable).
337. See Solove, supra note 292, at 1015-19 (arguing that the modern bureaucratic state is by nature inimical to individual rights and that nondeferential judicial review is essential to correct its excesses).
338. See id. at 1010-14 (critiquing the factual and theoretical assumptions of the notion of institutional competence and similar justifications for judicial deference).
339. Douglas Laycock, A Syllabus of Errors, 105 MICH. L. REV. 1169, 1174-75 (2007) (reviewing MARCI A. HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (2005)).
340. Id. at 1176.
341. See, e.g., Faigman, supra note 287, at 552-64 (discussing the role that assertions of social, political, and economic fact have played in the Court's most famous cases); Timothy Zick, Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths, 82 N.C. L. REV. 115, 147-53 (2003) (discussing a judicial movement toward reliance on empirical social-science and other data in reaction to earlier decisions relying on less measurable forms of social-science information).
342. The issue of deference to legislative fact-finding also raises the question whether states are entitled to lesser or greater deference than the federal government, but that question is beyond the scope of this Article.
343. The Congressional Research Service and General Accounting Office, for example, conduct studies, gather data, and analyze statistics in order to report them to Congress. See Frickey & Smith, supra note 293, at 1738, 1738-39 (describing "support agencies" for Congress). But they do not conduct medical or scientific studies; as Professor Laycock has noted: Despite [legislatures'] problems, broad policy questions are better left to legislatures than courts. . . . [W]ith respect to broad, multi-polar questions about how complex economic and social systems will respond to proposed changes in policy, no one finds facts very well because the facts are simply too complicated. But such questions are particularly ill-suited to the judicial process, which is designed for two-sided disputes that can be focused on one or a few specific questions. Laycock, supra note 308, at 1175.
344. The National Academies (formerly the National Academy of Sciences), an independent entity created by congressional charter to provide technical and scientific advice, is arguably the equivalent of some of Congress's other fact-gathering arms. See The National Academies, About, http://www.nationalacademies.org/about/faq1.html. It carries out studies primarily at the behest of government sponsors, but it has no funding of its own. Id. But it is unclear how often Congress, not to mention state legislatures, relies on studies conducted by the National Academies.
345. See also Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75, 100-03 (describing the virtues of the trial process for evaluating legislative facts).
346. See Stephen Breyer, Introduction to REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1, 5 (Fed. Judicial Ctr. ed., 2d ed. 2000) (speaking favorably of the role of amicus briefs in the Supreme Court when scientific issues are involved). Amicus briefs filed by medical organizations do not always support individuals' claimed right to make autonomous medical treatment decisions, moreover. For example, the American Medical Association (AMA) filed a brief opposing the legalization of physician-assisted suicide in Vacco v. Quill, 521 U.S. 793, 800 n.6 (1997) and was initially opposed to the liberalization of state abortion laws in the 1960s. Roe v. Wade, 410 U.S. 113, 142-43 (1973) (noting that the AMA Committee on Human Reproduction advocated a policy of opposition to induced abortion).
347. FED. R. EVID. 706.
348. REFERENCE MANUAL ON SCIENTIFIC EVIDENCE, supra note 315.
349. Id. at 6.
350. 509 U.S. 579 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999) (applying the general principles of Daubert to all expert testimony); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143-47 (1997) (applying Daubert principles to epidemiological expert testimony in the toxic-tort context).
351. See, e.g., Daubert, 509 U.S. at 601, 600-01 (Rehnquist, C.J., concurring in part and dissenting in part) (worrying that Daubert will encourage judges to act as "amateur scientists"); Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1114-17 (noting the longstanding criticisms of the use of expert evidence in common law courts). Some critics of the Daubert decision suggest, however, that the Daubert standard is overly conservative, favoring defendants over plaintiffs and excluding much relevant scientific evidence.
352. See Carl F. Cranor, The Dual Legacy of Daubert v. Merrell-Dow Pharmaceutical: Trading Junk Science for Insidious Science, in RESCUING SCIENCE FROM POLITICS 120, 120 (Wendy Wagner & Rena Steinzor eds., 2006);
353. Jennifer Wolsing, Note, Daubert's Erie Problem, 82 IND. L.J. 183, 190 (2007) (noting that the gatekeeping function for the trial courts created by Daubert has resulted in more exclusion of plaintiffs' proposed experts than before Daubert). See generally id. at 192 n.73 (citing criticisms of Daubert as conflicting with contemporary scientific standards). There is consequently reason to think that plaintiffs will not be as highly advantaged by a regime of nondeference as it may initially appear. Indeed, the Court remarked in Weisgram v. Marley Co., 528 U.S. 440 (2000) that Daubert imposes "exacting standards of reliability" on litigants. Id. at 455.
354. E.g., Gross, supra note 320, at 1175.
355. Of course, on the margin, it will sometimes be difficult to determine what is a "pure" issue of medical or scientific fact, particularly where the issue is one of public health, which inevitably involves policy judgments. But in cases where the question is whether a particular treatment is medically appropriate - that is, safer or more effective than the alternatives for some individuals - it seems that only pure medical questions are involved.
356. Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610, 1643-44 (2007) (Ginsburg, J., dissenting).
357. Id. at 1644 (citing Carhart v. Ashcroft, 331 F. Supp. 2d 805, 1008-09 (D. Neb. 2004) and Nat'l Abortion Fed'n v. Ashcroft, 330 F. Supp. 2d 436, 488 (S.D.N.Y. 2004)).
358. See Nat'l Abortion Fed'n, 330 F. Supp. 2d at 492 (asserting that the evidence before the Court in Carhart I, like the testimony on which Congress relied in passing the PBABA, revealed a division of medical opinion on whether women could potentially benefit from "partial-birth" abortions).
359. Carhart II, 127 S. Ct. at 1643-44 (Ginsburg, J., dissenting); Nat'l Abortion Fed'n, 330 F. Supp. 2d at 485 & n.30; Planned Parenthood Fed'n of Am. v. Ashcroft, 320 F. Supp. 2d 957, 1003-10 (N.D. Cal. 2004).
360. Carhart II, 127 S. Ct. at 1644-46 (Ginsburg, J., dissenting). As a point of clarification, I do not argue that legislatures should be required to build a legislative record or demonstrate that they have engaged in a particular level of deliberation before their fact-finding may be accepted by courts. Such "due process lawmaking" or "on-the-record lawmaking" requirements have been amply and competently criticized. See, e.g., William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 STAN. L. REV. 87, 160-61 (2001) (criticizing the Supreme Court's use of legislative record review);
361. Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80, 83-85 (2001) (attacking the Rehnquist Court's approach to legislative history for requiring excessively detailed evidence in support of congressional enactments). Rather, I contend that individuals challenging the constitutionality of a law restricting access to medical treatment ought to have the opportunity to present expert medical testimony regarding the merits of the treatment and that legislative findings to the contrary should receive no special deference. Rather than blindly accepting unsupported legislative findings, courts should require governments to present proof refuting the challengers' evidence.
362. Unborn Child Pain Awareness Act of 2006, H.R. 6099, 109th Cong. (2006); Unborn Child Pain Awareness Act of 2005, H.R. 356, 109th Cong. (2005).
363. H.R. 6099 § 3. There are slight differences between the 2006 version (which failed to pass the House) and the 2005 version (which has not been voted on), but they require the same information to be conveyed to the woman and recite the same findings. For simplicity, the rest of this Article will refer only to the 2005 bill.
364. See, e.g., Linda P. McKenzie, Federally Mandated Informed Consent: Has Government Gone Too Far?, 20 J.L. & HEALTH 267, 295 (2006-2007) (discussing a study concluding that "a fetus cannot perceive pain until . . . around twenty-nine to thirty weeks gestational age"); Tobin, supra note 292 (manuscript at 29-30) (suggesting that scientific literature supports a conclusion that a fetus lacks the physical structures necessary to perceive pain until twenty-nine to thirty weeks' gestational age).
365. McKenzie, supra note 330, at 281-82.
366. Id. at 282-83.
367. Susan Okie, Access Before Approval - A Right to Take Experimental Drugs?, 355 NEW ENG. J. MED. 437, 437 (2006). As the court emphasized in Abigail Alliance, a right to make autonomous medical treatment choices will not in all cases outweigh the countervailing government interests, Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 469 F.3d 129, 138 (2006), rev'd en banc, 495 F.3d 695 (D.C. Cir. 2007), and the interest in the viability of clinical trials may well be important enough to override individual patients' rights.
368. This Article therefore supports John Robertson's view that embryonic-stem-cell-derived therapies most likely could not constitutionally be banned by states, although they could of course be regulated. See Robertson, supra note 277, at 17 (concluding that no asserted state interest "is sufficiently robust to justify the health loss to individuals denied safe and effective ESC [embryonic-stem-cell] therapies" but that the FDA or other agencies can regulate the right to receive medical treatment "in the interest of the health and safety of patients and the community").
369. In other words, the undue burden standard from Casey can be understood either to require that any regulation burdening the right to access an abortion in a sufficiently onerous way must be struck down (thus emphasizing the word "burden"), or it may be read to require that regulations of the right to access an abortion must be struck down whenever they are not sufficiently justified (thus emphasizing the word "undue"). It seems to me that both of these issues should be taken into account when considering whether a regulation affecting the right to make medical treatment choices should be upheld.
370. E.g., GOSTIN, supra note 77, at 68-69.
371. See Lawrence v. Texas, 539 U.S. 558, 567 (2003).
372. Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610, 1633 (2007).
373. Cf. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 885 (1999) (arguing that "the threat of undesirable remedial consequences" may "motivat[e] courts to construct the right in such a way as to avoid those consequences").
374. Raich v. Gonzales, 500 F.3d 850, 861 (9th Cir. 2007).
375. Cf. Andrews v. Ballard, 498 F. Supp. 1038, 1056 (S.D. Tex. 1980) (holding that while Texas may not limit the practice of acupuncture to licensed physicians - effectively rendering the treatment unavailable - the state may require a diagnosis or referral from a physician).
376. Cf. TIEDEMAN, supra note 266, at 205 (distinguishing between legitimate state regulation of "quacks and disreputable practitioners" and illegitimate regulation of medical decision making by medical professionals).
377. See e.g., Stenberg v. Carhart (Carhart I), 530 U.S. 914, 931 (2000) (striking down Nebraska's "partial-birth" abortion ban in part because it prohibited certain abortion procedures); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 79 (1976) (overturning a Missouri law that prohibited the use of the saline amniocentesis abortion procedure).
378. See H.B. 126, 125th Gen. Assem., Reg. Sess. (Ohio 2004) (regulating mifepristone); H.B. 1038, 48th Leg., 1st Sess. (Okla. 2001) (banning mifepristone); see also CTR. FOR REPRODUCTIVE RIGHTS, LAWS AND REGULATIONS AFFECTING MEDICAL ABORTION (2003), http://www.reproductiverights.org/ pub_fac_medabor2.html (discussing proposed state legislation that would restrict medical abortion).
379. Gillian E. Metzger, Abortion, Equality, and Administrative Regulation, 56 EMORY L.J. 865, 868 (2007).
380. Id. at 868-69.
381. Henry A. Waxman, Politics and Science: Reproductive Health, 16 HEALTH MATRIX 5, 19-21 (2006);
382. Michael E. Horwin, Comment, "War on Cancer": Why Does the FDA Deny Access to Alternative Cancer Treatments?, 38 C4 W. L. REV. 189, 217-20 (2001).
383. See Amicus Curiae Brief of The Marijuana Policy Project and Rick Doblin, Ph.D. and Ethan Russo, MD. in Support of the Respondents at 2-3, United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001) (No. 00-151) (arguing that government agencies have interfered with attempts to obtain FDA approval for cannabis as a prescription drug by maintaining a monopoly on the legal supply of cannabis for research purposes and systematically denying access to that supply).
384. See supra note 129.