Jessica Flanigan argues that individuals have the right to self-medicate. Flanigan presents two arguments in defense of this right. The first she calls the epistemic argument and the second she calls the rights-based argument. I argue that the right to self-medicate hangs and falls on the rights-based argument. This is because for the epistemic argument to be sound agents must be assumed to be epistemically competent. But, Flanigan’s argument for a constitutionally mandated right to self-medicate models agents as epistemically incompetent. For Flanigan, agents are different at the pharmacy than they are at the polls. I identify this behavioral asymmetry and advocate a symmetric and realistic behavioral postulate for both arguments. The result, however, is that the success of the epistemic argument becomes contingent which fails to justify a constitutionally mandated right. I proceed to raise skepticism about the rights-based argument as well. I conclude that there is reason to be skeptical that these arguments can justify a constitutionally mandated right to self-medicate. Ultimately, a bottom-up approach to pharmaceutical ethics is preferable.
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My point here is methodological and can be seen as being part of what Kogelmann (Forthcoming, p. 1) calls a methodenstreit—a term that refers to “an intense debate over the proper methodology of political philosophy.”
Put more carefully, if we have one right, then we, normatively speaking, have both and, legally speaking, should have both.
Thanks to an anonymous reviewer for advocating additional clarity here.
A reviewer asks why we should accept this premise. Ultimately, I believe, in line with the reviewer’s question, that it is precisely this premise that should be challenged in the argument. I take this up later in the paper. It is worth emphasizing, though, that my aim at this stage is merely to extract and formalize Flanigan’s arguments, not to defend or to reject any of them.
I am grateful to a reviewer for stressing that such inducements of treatment are not necessarily immoral as doctors may be morally obliged to pursue such channels within certain medical contexts. Whether doctors are actually being manipulative depends on what we mean by the term as well as the specifics of the case. How and where to draw the line both on what is manipulation and what is not and on what is permissible manipulation and what impermissible manipulation are vast questions that I could not adequately address here. What is important for present purposes is that Flanigan’s Patient Protection Justification entails that the overwhelming majority of (perhaps all) manipulation cases are morally wrong.
I use the term “behavioral” in a capacious sense to include epistemic features.
Notice that your friend is not being coerced or manipulated or induced in any way into picking the objectively “right” (whatever that may mean) partner. Rather, the friend is just being coerced out of picking what seems like the obviously wrong partner.
A medical context, specifically organ donation, in which the notion of normative consent has been applied can be seen in Saunders (2010).
For a different take on the redistribution of body parts, see Fabre (2006).
Of course, the mere option of being able to restrict access can be unjustifiably abused.
For a discussion of the value of local knowledge in a different context, see Robson (2018).
I would like to thank Chris Freiman for an extremely productive conversation, Greg Robson for providing his characteristically incisive and rich comments, and two anonymous reviewers for the journal for offering helpful comments on the paper.
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Carroll, J. Is Visiting the Pharmacy Like Voting at the Poll? Behavioral Asymmetry in Pharmaceutical Freedom. HEC Forum (2020). https://doi.org/10.1007/s10730-020-09414-8
- Behavioral asymmetry