The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
People are entitled to make intimate and personal decisions about their own bodies and health. This is why physicians are required to comply with the doctrine of informed consent. Physicians must refrain from misleading, tricking, coercing, or forcing competent adult patients to undergo treatments that they do not consent to. Even when overriding a patient's medical choice would make her better off on balance, or would improve her health, physicians still must refrain from paternalistic interference.
The libertarian approach to medicine holds that the same principles that prohibit paternalistic interference in clinical contexts also prohibit paternalistic interference by public officials. For example, just as it would be wrong for a physician to coercively compel a patient to use a recommended drug, it is also wrong that public officials currently enforce prescription requirements that coercively prevent patients from using drugs against the advice of their physicians. Just as it would be wrong for a physician to override a severely ill patient's decision to refuse potentially lifesaving care, it is also wrong when public officials override severely ill patients' decisions to try potentially lifesaving therapies by restricting access to unapproved drugs.
As I argue in Pharmaceutical Freedom, the same principles that support the doctrine of informed consent also support rights of self-medication. In addition to the fact that coercive paternalism violates people's rights, paternalistic interference with people's medical choices is also likely to have bad consequences on balance because people generally know whether a choice is in their overall interest better than a physician or public official would. To the extent that people don't know if a choice is in their interests, it is better to educate them about the risks of their choices than to make decisions on their behalf.
These reasons against paternalistic interference by physicians are also reasons against coercive public health paternalism. And these arguments not only weigh against prescription and approval requirements for pharmaceuticals, they also support people's rights to use recreational drugs or deadly drugs. Arguments for self-medication are libertarian in the sense that libertarians support all policies that respect individual liberty. But non-libertarians should also support rights of self-medication if they support the doctrine of informed consent and object to paternalistic policies that potentially do more harm than good.
The libertarian approach to medicine is distinctive with respect to other policies though, particularly policies that relate to markets. Libertarians' commitment to individual freedom extends beyond a commitment to respect for bodily rights, which many people share. Libertarians are also committed to economic freedoms such as freedom of contract and occupational freedom. It is for this reason that libertarians like Milton Friedman oppose occupational licensing requirements in medicine. And libertarians also ought to oppose policies that require health workers to perform procedures that they oppose for moral reasons. The same goes for employer mandates to provide birth control, nor should employers be required to provide their workers with health insurance because these policies violate people's freedom of contract.
More generally many libertarians are skeptical of the claim that people have rights to health care in the first place, so they will reject most coercive policies that aim to promote people's health. But even if people were entitled to health care, libertarians generally favor markets over mandates as a way of promoting people's health. For example, libertarians point out that market-based policies such as organ and blood plasma markets could promote overall health and well-being. Other libertarians support a universal catastrophic coverage plan paired with policies that remove existing distortions in the health care market, such as the tax-deductibility of employer sponsored insurance.
Current approaches to pharmaceuticals and healthcare fall far short of libertarian approach to medicine. But we have made progress since the twentieth century. For example, physicians are now morally and legally committed to comply with the doctrine of informed consent and many liberals reject coercive paternalism by public officials. In these ways, the moral foundations for a more libertarian approach to medicine and public health are implicit in ethical principles that many people already accept.
Jessica Flanigan is an assistant professor of Leadership Studies and Philosophy, Politics, Economics, and Law (PPEL) at the University of Richmond, where she teaches ethics. Her research addresses the public health policy, feminism, and business ethics.