Grossman examines -
the persistent American demand for freedom of therapeutic choice as a popular constitutional movement with its origins in the nation’s earliest years. It also shows how multiple concepts of freedom, in addition to bodily freedom, have contributed to the concept of a constitutional right to medical liberty.He comments that
There is a deep current of belief in the United States that people have a right to choose their preferred treatments without government interference. Cries of “Death Panels” are routinely directed against health care reform proposals that might limit patients’ access to medical products and procedures. FDA is furiously attacked, on freedom of choice grounds, for withdrawing approval of drugs. Polls show overwhelming support for the legalization of medical marijuana.
This attitude of therapeutic libertarianism is not new. Drawing mainly on primary historical sources, this Article examines early American arguments in favor of freedom of therapeutic choice. First, it considers the views and statements of Benjamin Rush, an influential founding father who was also the most prominent American physician of his era. The Article then analyzes the antebellum battle against state medical licensing laws waged by botanical practitioners and their supporters. This triumphant struggle, though occurring almost entirely outside of court, was waged in explicitly constitutional terms. It thus offers one of the most striking examples of a successful popular constitutional movement in American history. The Article also demonstrates that at its origins, American commitment to freedom of therapeutic choice was based on notions of economic freedom, freedom of religion, and freedom of inquiry, as well as bodily freedom.
The inexorable rise of frequently effective scientific medicine and “wonder drugs” in the early twentieth century posed a serious challenge to alternative medicine. Nevertheless, a notable feature of the story of Ameri-can alternative medicine during the past century has been its remarkable ability to thwart attempts by the government (frequently backed by organized medicine and the pharmaceutical industry) to restrict access to alternative practitioners and products. Interest in and use of alternative remedies have soared since the 1970s, along with broad cultural skepticism about science and technology. Modern campaigns for medical freedom outside orthodox medicine, though often led by financially-interested alternative medicine practitioners and manufacturers, are regularly bolstered by massive outpourings of popular support. Moreover, the rhetoric supporting these campaigns bears many similarities to the antebellum struggle against medical licensing, including “thin constitutional” claims of individual rights, populist rages against unholy alliances between government and the medical establishment, and multidimensional freedom arguments invoking not only bodily liberty, but also economic freedom and freedom of conscience and religion. ...
It remains to be seen, however, whether promoters of freedom of therapeutic choice within orthodox medicine can construct a persuasive multi-pronged argument similar to the Thomsonians’ rhetoric of the nine-teenth century. Many people arguing for freer access to unapproved pharmaceutical products do not embrace economic libertarianism and broader hostility to government. To the contrary, they value FDA’s role as a gate-keeper ensuring drug safety and effectiveness, and they energetically campaign for more government funding of medical research. In the 1980s, for example, the leaders of a demonstration at FDA headquarters by AIDS activists demanding earlier and greater access to experimental drugs warned: “Aids [sic] advocates must be careful to keep their agenda ... from being confused with the Bush/Wall Street Journal/Heritage Foundation Agenda of sweeping drug industry deregulation.”
Furthermore, freedom of religion arguments are largely absent from the rhetoric of activists urging freedom of patient choice within orthodox medicine, perhaps because modern scientific medicine, with its materialist and empirical underpinnings, has a tenuous connections to spiritual matters. Finally, and importantly, contemporary arguments for liberty within orthodox medicine rarely invoke the freedom of inquiry strand of medical freedom. Since the middle of the twentieth century, the gold standard for establishing medical effectiveness has been the meticulously structured, highly restricted, placebo-controlled clinical study. In this regime, the unregulated use of unproven remedies tends to undermine, rather than advance, the pur-suit of truth.
It is thus possible that freedom of therapeutic choice within orthodox medicine will not assume the features of a broad popular constitutionalist movement. But this result is not foreordained. Perhaps bodily freedom arguments alone can drive such a movement. Or maybe conditions will change so as to enhance the modern relevance of one or more of the other traditional strands of medical freedom. In any event, the stubborn American insistence on freedom of therapeutic choice is something policymakers inevitably will have to wrestle with as they struggle to devise solutions to the health care crisis of the twenty-first century.