 Welcome to Free Thoughts. I'm Trevor Burris. Joining me today is Jessica Flanigan, Assistant Professor of Leadership Studies in Philosophy, Politics, Economics, and Law at the University of Richmond. Her new book is Pharmaceutical Freedom, Why Patients Have a Right to Self-Medicate. Welcome to Free Thoughts, Jess. Thank you for having me. So there are two cases you discuss early on in the book that illustrate the central theme of the book. One of them you call Risky Refusal, which is Debbie has diabetes and her physician advises her to start insulin treatment. Debbie understands the risks of refusing insulin but is also unwilling to live by a schedule and monitor her medication. Against medical advice, Debbie decides to try to manage her diabetes with diet and exercise. Debbie's physician is morally and legally prohibited from injecting Debbie with insulin against her wishes. In the second case, you call Risky Access. Danny has diabetes and his physician advises him to treat his condition with diet and exercise. Danny doesn't want to invest time or energy in diet and exercise or would prefer to just begin using insulin right off. Against medical advice, Danny wishes to try to manage his diabetes with insulin. However, Danny cannot legally access diabetes medication without a prescription from his physician. So how do those two scenarios kind of set up the framework for your book? So the spirit of the example, like what that's intending to show is that we can just hold constant the risks. So assume that it's just equally risky to refuse to comply with medical advice either way. But in cases of informed consent, we have this principle of anti paternalism, which says even though it's risky for you to do something that your doctor disagrees with, it's your body, it's your choice. But then we think about that general principle that motivates the intuition that, yeah, like even if I'm making a risky decision, my doctor can't lie to me, my doctor can't force me to comply with a certain treatment. If you have that intuition, then you should also have that intuition about people who want to access drugs of comparable risk against medical advice as well. And when it comes to the kind of refusal of care cases, we allow extraordinary amounts of risk. So we allow people to refuse even life saving care. So even if refusing care or refusing treatment includes a risk of death, we permit patients to make that decision to refuse life saving treatment. So I think that a broad principle of anti paternalism in the informed consent cases supports really sweeping rights to also make medically risky access decisions. Now, people might say, those cases aren't really analogous because in one case of informed consent, people are interfering with the boundaries of their body. Whereas in the access case, people are just withholding something that you might want to use. There's a kind of asymmetry there. However, you can violate a person's right to informed consent without ever touching them. So deception, for example, is a violation of the patient's right to informed consent. But it doesn't involve a kind of medical battery. It doesn't involve an assault upon the person in that way. Or in the access case, when people do try to access prohibited therapeutics or prohibited drugs, like for other reasons or recreational drugs, deadly drugs, they are threatened with threats against their person, because legal penalties consist in threats of like imprisonment or threats of fines, which are backed up by a kind of coercion. And so the intuition that there is an asymmetry between the informed consent case and the self medication case, I think falls away when we see that violations of informed consent don't have to involve coercive threats against your body or violence against your body, and also limits on patients access does involve coercion and limits in this way. You point out that even the doctrine of informed consent, which I think everyone regards as almost obvious, if your doctor, if you say, I don't want you to cut off my gangrenous foot, and then the doctor drugs you and cuts it off anyway, people would think that that's important. But that wasn't always the case. There were a lot of violations of informed consent 100 years ago. Right. That's how we got informed consent, which is, you know, Mary Schlowendorf about 100 years ago, 100 years ago, went into a hospital and explicitly did not want a surgical intervention that would remove any organs or anything like that. And she didn't, she not only did not consent, but she said, you know, do not intervene in this way. I don't want any kind of removal or therapeutic surgery. She just consented to be examined under ether. And she was being examined and her physician found tumors, performed a hysterectomy, she woke up and sued the physician in the hospital, New York hospital, as saying it was a kind of medical battery. And that was the kind of that time period was the beginning of patients having the right to at least refuse forcible interventions like that, people taking out their organs when they were under anesthesia. But in 1968, there were surveys of oncologists that were done that showed even as recently as then that 90% of oncologists would paternalistically withhold information about a cancer diagnosis from their patients, at least in some cases. So medical paternalism was the norm until really recently to save them from emotional trauma or something just to not tell them they have cancer. Yeah, that was the justification was that the knowledge that they had cancer would be an additional injury against them. However, even at the time, there was like survey evidence that that was not true, because people know when there's like something wrong with their bodies. And so that kind of uncertainty that the withholding of the information induced was not in the patient's interest either. I think part of it is that the physicians themselves felt uncomfortable delivering that kind of news. So and I guess that that's an interesting sort of way that your book is framed that it wasn't always the case that we had this doctrine of informed consent that we now think is sort of obvious. But we are still practicing doctrines that prevent people from medicating themselves, which hopefully will one day become as obvious that it was it was absolutely inhuman to prevent people from accessing medications of various sorts. And in that, you just kind of make a very clear philosophical argument, which I like to work through kind of premise by premise, your first premise is each patient is typically in the best position to determine which treatments are in his or her overall interest. Is that really always true? No, of course not. I mean, we can so I like typically or in general, people are going to be experts about their own interest. And that's just to say that, you know, maybe your physician knows what's medically best for you, which that's that even that's not always the case. But say that physicians are medical experts, health is only one value. And how that value of health fits into the patchwork of your other values, how it informs your choices in your life more broadly, that's something that you are the expert about that only you can really know like, for you, from the inside of living your life, how important is it for you to make these tradeoffs regarding, for example, longer life versus higher quality of life, how important is health relative to cost or convenience, and informed consent recognizes that right, that's why people are allowed to refuse life saving treatment, even if it's in their medical interest, because people might say, for example, it's more important to live in accordance with my religion, than it is to get a blood transfusion that could save my life. And we say, it's your body, you know how living in accordance with your religion fits into your value system, relative to how health fits into your value system. There's a principle of deference. So even if people in general are the most qualified to make these judgments, of course, there are going to be counter example cases, where you can see a person you're like, Oh, my gosh, that person's like, even by their own lights, they should see that they're making a terrible choice. Like I think that we've all known people or seen people where you're like, Oh, why are you dating that person that's not in your interest or something like that. But then the question is, who would be better? Right. So like, even if we can see that people are generally making reliably, like bad choices for their life, it doesn't follow from that that there's a general principle that like other people in their lives who occupy a certain institutional role are going to reliably do much better. So pointing to like one off examples where people don't promote their own overall interest doesn't establish that there shouldn't be a general presumption in favor of deferring to people as the experts on their own interest. What about those who are say addicted to very powerful substances? Do they know what's in their overall interest? I mean, addictive drugs are a more difficult case for the, the, we might call it the epistemic argument, like that you know what's best for your overall interest argument, because it's kind of controversial in the philosophy of addiction, the extent to which additional choices are voluntary. But I tend to be pretty persuaded that even addictive choices are choices that are sensitive to reasons and incentives, and that that is a decision that a person is making. Yes, in light of an extremely strong addictive desire. But like given that they have that addictive desire, I do think they're still consenting in those choices. So on the kind of rights based arguments, which I imagine we'll get to later, I do think that like addictive decisions may respect. On the other hand, on the interest based argument, which is like what we're on right now, which is this kind of like, you're the best judge of what's good for you on balance. You know, sometimes people will have really strong short term desires that might prevent their ability to promote their long term desires. But I do think even then you should still preserve a principle of deference, even for people who are addicted, although I will concede that like that argument is I think less strong than the rights based argument here. And the reason is partly because of what I said earlier, which is like, even if a person isn't as good at like trading the day for the year, even if they are more sensitive to extremely salient, powerful short term desires relative to long term desires, for example, it doesn't follow that somebody else would be better at making those types of decisions for the person. And I'm also, it doesn't follow that I also am skeptical that it follows that having a prohibition is the best way of helping that person act in accordance with their interest. So like if all we're just thinking as like the welfare on balance of people who are addicted to drugs for making the decision to use drugs, I think giving them, you know, information about treatment alternatives or access to things like Suboxone and like kind of giving them the resources to make different choices that could be more in their long term interests is a more humane approach than the kind of prohibitionist approach, especially when you're thinking of like addictive drugs, which are classified as like recreational drugs more. Because then people like the way that we respond to that as a society is not only by preventing them from accessing it, but by criminalizing it. And like, I don't think anybody should think that it's in the interest of addicts to be subjected to criminal penalties for failing to promote their interest. Like whether or not a person is promoting their interest, I don't think that it would be in their interest more generally to subject them to criminal penalties when they fail to go to jail. Yes. Well, Jeff Sessions, I think believes that, but I think fewer and fewer people believe that. Yeah. So the next premise, this is for the informed consent premise that health workers should aim to promote patients overall wellbeing, which seems relatively non-controversial. And so the third premise is, in general, the most reliable way to promote overall wellbeing is to defer to the expert who, as you've heard before, is the patient. And so the conclusion is health workers should defer to patients' judgments about treatment options. And that, you argue, should apply across the board into prohibited, what are currently prohibited drugs. So getting into that, what does the FDA do regarding access to pharmaceuticals? So there's kind of three ways that patients rights to access drugs are currently limited. The first is, some drugs, you just can't buy them. You can't get them. So they're prohibited drugs. So in some states, for example, drugs that people could use just to end their lives, those would be prohibited. So like NAPU-tall or something. So there's prohibitions on certain drugs, recreational drugs prohibited through the DEA, or the Department of Justice more generally. There's also these more subtle ways that people lack access to drugs, which is more through the FDA, which I think are often overlooked when we're talking about drug policy, because it's, some people do in fact have access, but it's kind of partial distribution of access. And the two that I focus on is, first, the approval process. So while the approval process is happening, which takes years, only patients that are accessing the drugs through the context of a clinical trial, or more very rarely through like a kind of compassionate access program. But just for the most part, clinical trials, only people who are enrolled in the clinical trials for the testing dates of the drug have access to that drug. So then people who don't qualify for inclusion in the trials that are part of the approval process are left waiting for the drug. So imagine that a drug is going through this approval process to be tested for whether it's effective. That means that the only people who have access to it are patients who meet the kind of patient condition combination, patient type condition combination to qualify for inclusion in the trial. But once the drug is approved, patients with all sorts of conditions might benefit from using the drug, despite the fact that the drug wasn't tested for efficacy for their condition. And so all of those additional benefits that patients can get from using a drug or accessing a drug are for stalled while people lack access during that lengthy clinical trial phase. And I think that has bad effects in two ways. The first way is just that people suffer and die waiting for access to a drug that could potentially benefit them and that they judge could potentially benefit them because they can't qualify to participate in the approval process. The second is the approval process is so long and so expensive that it deters innovation. And so the first thing that just people who suffer and die waiting for approval, that's called drug lag. And that's bad because there's lives lost for a drug that exists. And you can in some ways see the the human cost of that. So you can see examples of patients who wanted to access a drug, didn't meet the criteria, died, later the drug is approved and used off-label to treat the condition that they had. What we never really see are the people who are suffering or dying of conditions that could have been treated. But we had such a costly approval process that we deterred innovation in a way that we don't even see the drugs that could have been developed had we had a system that was less burdensome with regards to drug development and we could have more innovative system. And that's like called drug loss and that kind of lack of innovation is also really costly. Also the FDA designates some drugs as requiring prescriptions, which means that physicians are legally empowered to active gatekeepers between patients and their drugs. And this is where that like patients know best argument might be seen like pretty vividly because, for example, you could imagine a patient who says I think it's in my overall interest to use, for example, like Adderall or something. Which a lot of people do think that, yes. Right. And if their physician judges that it's not in their medical interest, then the physician is legally empowered to override the patient's judgment about what's in their interest. And then the patient lacks effective legal access to the drug. So by empowering physicians to act as gatekeepers through this prescription system, the FDA is effectively empowering physicians to override the patient's judgment about what's in their overall interest. That was the FDA. It's kind of it's always struck me as odd that the FDA determines how risky something should be. But they've always they haven't always done it this way. Correct. I mean, they it was only since about the 60s that they did this efficacy type where they decide if the drug is effective enough for the FDA, which is which is strange because it that's not really the question. Like if the FDA was deciding if hang lighting was effective enough for me or like risky enough for me, I don't I don't really know how they could make that decision. And it seems to be the same with drugs. Well, so what what do they actually purport to do to decide how risky it should be? Yeah, so both safety and efficacy are not scientific judgments. Like the FDA is like, oh, we're you know, just deferring to scientific judgments about safety and efficacy. But there's really no such thing about a scientific judgment of safety and efficacy. So safety is maybe like a more universal idea of like on balance. Is this more likely to make things better or worse or something like that? But efficacy is it effective at treating this? The standard isn't necessarily does it treat it at all? But does it beat the standard of care or does the drug benefit the patient with that condition sufficiently such that the benefits are worth it given the side effects and risks? But notice that like if you're looking at a drug or you're looking at a trial population, you're looking at the results of the trial, there's nowhere like under the microscope or in the spreadsheet where you can like identify the property of acceptably risky or you can identify the property of worth the risk. So these aren't medical judgments. They're not scientific judgments that they're making. They're making it on the basis of medical and scientific data, but patients could also make a judgment about whether or not something's acceptably risky or worth it based on that evidence and based on a bunch of evidence that every patient has, which would be totally inaccessible to public officials, which is evidence about their values or about their life or, you know, how they trade off side effects versus longer life or how they tolerate risk. Like people have different tolerances for risk. So given that people are also different, it's odd that the efficacy standard and safety standards require a kind of one size fits all judgment. I think people would probably say that this makes some sense in the abstract, but we're really talking about questions that patients can't answer. It's not, they don't, I mean, they can't read the chemical composition or something or get an idea of how this works or understand all the arcane medical terminology and all the stuff. And they're also super vulnerable as people with possibly, let's say, terminal illnesses. So they're willing to, if they went to a witch doctor who said that they could cure them with crystals or with some sort of rain dance, they would do that too. And you want to say, yeah, you probably should do that. And maybe, you know, we're standing in between those people wasting time and money and endanger our lives seems like an important role of the state. Well, this kind of gets to the second class of arguments, which is just more generally against paternalism. So it is true that people who are suffering from these illnesses are potentially more vulnerable, we might think because we see them making decisions that wouldn't make sense to us like, oh, I can't believe you're spending so much money on this therapy that doesn't seem likely to work. But it's hard for us to think that judgment without kind of knowing what's sort of in their head and like kind of like people who are in that type of a situation might make judgments that look like they don't make sense to us from the outside. But we from the outside really lack access to understanding kind of what is light from the inside for that patient. And like it might actually be a rational decision. But even if it's not, it's still their body to make. It's bodily choice to make. And so, you know, people with terminal illnesses sometimes might refuse treatment and you might think or maybe not terminal illness to the degenerative illnesses, for example. And you might think, oh, my gosh, this is an irrational decision. Like if you accepted treatment, you could have five more good years or something like that. And a person might nevertheless say, yeah, I agree that like I might have all of this well being in the future. But nevertheless, they could decide reasonably to refuse treatment. And even if they're in some ways closing themselves off from like a bunch of well being gains in the future, they're still exercising their rights. It sounds like kind of what part of your question was getting at those like people are just like not qualified to make complex medical decisions about drugs because drugs are so complicated and there's like a lot of science involved. But that's also true of refusal decisions because if you're refusing a therapy, then you should also in order to make an informed decision, you should know about the drugs that you're refusing. And so it would sort of cut both ways. And also people can sign mortgages. People make a bunch of other complex decisions. And I'm not saying that people shouldn't defer to experts in general. So for example, like if you think that patients are generally ignorant and that people are vulnerable to be misled or exploited, especially if they have terminal general illnesses, I'm not saying that people shouldn't talk to their doctor, talk to medical experts, talk to people who know a lot about science. And I even think that the FDA, if they wanted to, could certify drugs that people still have a path to access. And so, you know, if the FDA just certified a drug and said like, our judgment is that this is not, this drug's not worth it for the treatment of breast cancer, which they did, for example, like a vaston, like our judgment is that people shouldn't use this drug for this condition. Patients should have, I think, access to that kind of information. That information should be communicated to them in a way that's clear and understandable by their physicians. They should have an opportunity to ask questions of pharmacists, for example. So if you're worried about patient ignorance, I mean, there's a, there's a kind, I'm saying like, there's a kind of ignorance that we should worry about on the side of the doctor and the regulator, which is like ignorance about what it's like to be that patient. And there's a cure for the patient ignorance, which is that the patient can talk to the doctor and they can look at certifying bodies and see if a drug is certified for their condition. So it's really about this, this as you pointed out earlier, that it's not, you're not advocating for burning the whole thing down, or at least not in this book, that there's, let's think differently about ways of doing this. And the big problem here is the prohibition of access. If it's just, as you said, certification, hey, the FDA has spoken and people believe the FDA and they trust it. And other things we could, we could do this better than the way that we're doing it. Exactly. Yes. If people think that the FDA is a really reliable judge of whether or not it's worth it for a patient to use a drug with certain conditions, then let them be the judge, let them certify drugs. And I'm even open to like, private insurers could say, we'll only reimburse for FDA certified drugs. You know, that's a fine choice. It's like a private company, things that it's only worth it for them to pay for drugs that are how a certain kind of certification. That's their business. So you could even incentivize people to follow what the FDA is saying. But the current system treats people in a way that I think is sort of disrespectful of their own authority to make decisions about their life. And that sort of misses out on all of the information that you get from deferring to people's judgment. So it was good for them. You discussed a classic philosophical example in the book that comes from John Stewart Mill, though, which touches on this, is it permissible to stop someone from unknowingly crossing a dangerous bridge? So to act even with coercion or to stop them, which seems kind of paternalistic. So is that is that okay? And is that analogous to what we're talking about here? Well, yeah, just in the first instance of that, I would say, wouldn't it be better instead of like tackling a person if you could, if you could just instead call out to them and say like, Hey, that's a bad choice. Yes. And so the FDA wants to like call out to people and say like, Hey, that's a bad choice. They can write and I think it would be great for them to do so. But if they continue to go to the bridge crosser hears that and is still saying like, Yeah, like, I think I, I think it's worth it. I don't think that you could coercively interfere with the person. So that that leaves my next question then. So it seems to imply that is it ever okay to or when is it okay to stop someone from committing suicide? Yeah. So in the book, I say that people should have a right to die. And part of it is that people have a right to refuse life saving treatment. And I think it's kind of morally arbitrary to say that you have a right to make a deadly decision by refusing life saving treatment. And also people die via terminal sedation, when they're, you know, they can consent to, you know, be sedated until they die. And so it's odd that people can refuse life saving treatment, and it can consent to terminal sedation, but they can't consent to deadly treatment have a right to die. It's difficult in some cases because I do think that it's possible for a person to lack the capacity to make that kind of a decision. And you'd want to have some kind of ability. There's some kind of in principle ability to know that. But I think in general, there should be like an extremely strong presumption and favor of having a right to die. Because I think that, yeah, people have the authority to make decisions about their bodies even that in their lives. And so we can talk a little bit about sort of whether or not people have a moral obligation not to end their lives in certain cases, like if family members rely on them or something. But yeah, I think that there should be a pretty broad access to deadly drugs, Ethan. So if I if I walked into my house and saw that my roommate was was getting ready to hang himself, or maybe he was currently swinging. And would it would it be would it make sense for me to pick him up and try and resuscitate him? Or should I say no, no, it's okay. He made a valid decision. I mean, it's difficult to know about like the capacity. But I'm imagining this case, the way that you're describing it, where it's a case of a person who has, for example, like treatment resistant clinical depression, or something like that. And I do think that there should be a right a path to a right to die for people who have this. So maybe it would make sense in that case to intervene. But that's not to say that just because in that case, it may make sense to intervene. And I think it could be good to rescue him from that, that the right to die should be foreclosed even for people with treatment resistant depression. So for example, Belgium has a system where people can access deadly drugs. If even if they have depression, and Switzerland has a system where once they have these checks in place to ensure voluntariness and competence and a lack of coercion, people can access deadly drugs, even out of like weariness of life or yeah, because like sometimes people will access the right to die in Swiss high clinics because like their partners, they've lost their partners or they're going to lose their partners. And those are all non medical reasons that people in their lives. And I do think that that should all be legally permissible. Now, I don't think that that means that like deadly drugs should be sold like out of vending machines. Yeah, I think like behind the counter. Like so right now, like you have in order to get like suit, you have to get behind the counter. And there's a sort of like age requirement check and like some kind of capacity check by a health worker, I think would be warranted for the case of deadly drugs, not paternalistically, not to try to like talk people out of their choices per se or anything like that. But just to ensure that the person really is acting with capacity, that they're voluntary, that they're not acting in light of coercion. For example. So I think that people do have a moral right to use deadly drugs, whatever their reasons are, but there might be some pragmatic reasons to have additional limits on how the access of the Swiss system or the Belgian system might be a better approach to accessing deadly drugs. But also you want to think about the counterfactual. So like when I say that people have rights to access deadly drugs. Yeah, people counterfactually, like given that they don't have a right to access deadly drugs, like it does that mean that if people had a right to access deadly drugs, they that the suicide rate would go higher. I don't think so. I just think that, you know, maybe there'd be more checks on capacity. And, you know, but we already have a system where people can access, you know, guns or bridges or buildings. Right exactly. And so by saying that like, yeah, I think people have a right to access deadly drugs, it doesn't necessarily endorse that choice. Like I think it could often be a very bad choice. But just it just says that it's a person's rights. People have the right to do all sorts of things that they shouldn't do. Now, of course, if you're going to defend accessing just straight up deadly drugs, as you pointed out, it clearly that it would seem to imply that just drug prohibition of recreational drugs is not allowed either if people are going to just enjoy themselves on these drugs. Right. But is that how much of that is contingent upon the nature of the drug? Because is it we can talk about the right to put something into your own body? But if you think about the drug that only makes you eat faces, that that's all it does. It's the bath salts, which is a myth by itself with the zombie eating guy in Florida. That guy was not on bath salts. He was on a small amount of marijuana and he was crazy. But let's imagine the face eating drug that that people want to take, which would make these suspicious of that person to begin with. But is that the kind of drug that should be illegal or something that is really, really dangerous to other people if someone ingested, like many people believe PCP is, which is not terribly, but some of those drug stories that you become a psychopath and punch everyone in the face and an unkillable hulk. Should those kind of drugs be illegal? No. I think that like it's like I'm so funny. So I think like face eating should be illegal. Yes, I agree with that. Yes. Going out on a limb there. Yeah, I'm going to come out and take a stand in favor of prohibition for face eating, but not prohibition of the drugs. We know of a drug that causes people to commit acts of violence at a higher rate or to put other people's lives at risk and it's alcohol. So we have that drug and we tried prohibiting it and it was a disaster. And we should learn from that lesson that if you think that it makes sense to prohibit a drug because it incites people to act in ways that are impermissible, instead, you should just prohibit the thing that is impermissible. So don't ban alcohol because it leads to domestic violence. Enforce policies that protect people from domestic violence, like whether or not their husbands are drunk. And sometimes people will say this in terms of drug prohibition where they'll say like, well, if a person's hardcore drug user, you know, then they'll be more violent or they'll neglect their family or they'll like steal from people, they'll steal your TV to get drug money. We'll prohibit the wrongful acts that they do for the sake of the drugs. Don't because it's possible for a person to be a drug user of any kind of drug and to not commit those wrongful acts. And if a person's a permissible drug user, so say that there's like the face eating drug and it gives person like extraordinary pleasure but makes someone eat faces. But some people like take the face eating drug, we'll call it like werewolf style where they like lock themselves in a cage on a full moon and then they just use the face eating drug but they can't get out of the cage. Okay, like that's their business. Like if they want to do that, and like you shouldn't prohibit those people just because a bunch of other people are going to use the face eating drug in the bad way. Any more than you should prohibit alcohol because some alcoholic people commit domestic violence. And that wouldn't be a reason to say that nobody can have a glass of wine at night. What I mean, I think for some people it's an interesting question because the as I try to how far you're willing to go because alcohol does have, as you pointed out, extremely negative effects on violence and and violence can go down if you prohibit alcohol which could increase, you know, keep people alive, increase the the people who aren't now dead or harmed increase their rights, their right to autonomy. The total amount of autonomy could go up if because I on some studies alcohols implicated in 30 to 40 percent of violent crime in some way. So it would be a total autonomy rights maximizing thing to prohibit alcohol if we could do it effectively. There, which is one is like we can't do it effectively. And people like subjecting people who are doing something even that's like really risky or dangerous to like preemptive criminal penalties. How's all of these bad backfire effects right where it could be disproportionately enforced and it can lead to black markets and low quality, all the stuff that we saw during prohibition, all these kind of instrumental worries. But also, I don't think that we should be autonomy maximizers. I think autonomy is important for that you should respect autonomy and not maximize it. And the reason is I don't think that people who use alcohol in a permissible way are liable to be threatened with criminal penalties because they haven't done anything wrong. It's not wrong to engage in self-regarding behavior like that and make a self-regarding decision about your own body to use alcohol. And so you're not doing anything wrong. You don't make yourself liable to be interfered with just on the grounds that some other alcohol users are going to misuse it. So there's sort of like an analogy here with like gun ownership where it's like that's what I was going to ask next. Yes, seems very similar that the law abiding people shouldn't be punished for the non-law abiding people. Right. Like the thing that you should prohibit effectively is violence but you know just making that permissible self-regarding decision doesn't make you liable to be subjected to criminal penalties. You do bring up in the book. I'm glad when I was reading it because one thing I when I saw the cover and I saw what it was about I said well she needs to talk about antibiotics because as we're well aware or we should be well aware that there's a sort of increasing fear and danger of extremely resistant bacteria which there's some extreme doomsayers on this who say we you know it could be like going back to pre penicillin days which is the most probably important drug ever invented and antibiotics in general make even surgery possible. So you think differently about antibiotics that they actually should be restricted. Yes, I do. And here again the analogy to informed consent is useful. So I in general all of us we all have a right to refuse treatment to say to say no to certain medical interventions. But that right doesn't entitle us to inflict harm upon the rest of the community. So I think that the right of informed consent doesn't protect people necessarily from some kinds of compulsory vaccination policies. So policies that would say you know anybody who's using public services anybody who's working in a public oriented job or for example, should be compelled because they're going to be interacting with the public or being in public in this way to be vaccinated. And compulsory vaccination I think is justified because you don't have a right to like weaponize your body by like spitting whooping cough on your fellow citizens any more than you have a right to like go out on your back porch on the 4th of July because you like love gun rights or whatever and you want to celebrate with your gun and fire a shotgun into the air where it could potentially harm your neighbors. So that's a gun of harm to others limit on your right to make medical decisions about your own body, which even applies to informed consent. Similarly with self medication, sometimes people self medication choices will subject other people to a higher risk of harm. And there's limits to self medication when your medication choices are intrinsically harmful to other people. So it's not like the PCP face eating case where they're sort of like it's a correlation. It's like, no, like using this in principle is going to raise the risk of contagious transmission in the vaccine case or in resistance, harmful resistance in the antibiotic case. Are there limits on the vaccine question of there's a lot of vaccines out there for different diseases and you could mandate that people get, you know, 80 to 100 vaccines as opposed to kind of five or seven of you extremely dangerous and highly communicable diseases. What are the limits to the kind of mandating of vaccines you've discussed? Yeah. And so once we're in this sort of territory where we're weighing harm to others against a person's own bodily autonomy or bodily integrity, then you just really have to look at the force of the reasons on these sides of like how strong is the person's entitlement not to be harmed relative to how strong is the person's entitlement to make this decision. But in principle, there could be a level of antibiotic resistance risk or a vaccine risk that would justify requiring vaccination or requiring people to get a prescription for antibiotic use. So I'm not saying that it's always justified. For example, I don't think that like a tetanus vaccine could ever be compulsory because there's no risk of contagious transmission. So but the sort of exception carved out for antibiotics is similar to the exception carved out for vaccines, which is depending on the level of the risk of harm to others imposed by that choice. It is in principle possible that it could be permissible to limit bodily rights in those cases. So there's an interesting weighing here. And as I think you've articulated that this is a presumption of use presumption for use of deadly drugs of being allowed to use deadly drugs or presumption to use harmful substances or addictive substances presumption to use possibly lifesaving things. But but in many cases, they can be defeated by countervailing facts and specific rights of other people. But other people don't have a right that you don't harm yourself. Other people have a right that you don't harm them. And so it's like the anti paternalistic presumption, like you can't defeat that presumption by being like, but it's going to be really good for us to interfere with you for your own sake. But you can, you know, other peoples can have a claim that you not do it. On the paternalism point, one thing I hadn't asked yet was what about the difference between and you discussed in the book between stated judgments, peoples, people what they want now, but versus their considered judgment, this this the section there remind me somewhat of the nudge question that you could ask someone, do you want to lose weight? And they could say, you know, yes, but but then on or they could say no, then they're considered or they could say yes. And so you hold them to one judgment over the other. Should we prefer considered judgments over just what people say that they want? Well, I do think people should like be encouraged to reflect about what their judgments are. Right. But I think that there's a danger sometimes where we think like, oh, we don't care about a person's like initial judgment, we care about the best version of what you would decide. But if you keep on idealizing away from the best version of what a person would decide, you become increasingly distant from the person's actual values, judgments and experiences. And so we could just keep on idealizing sort of all the way up, right, and say like well, if you were fully informed and fully rational, you would make the decision that's in your best interest and you have a justification for paternalism. And so I don't think that you should do that because I think that, you know, if a person were fully informed and rational, like it's hard for us to even kind of say like, why that kind of idealized judgment? We should have any authority for the person who's like actually existing in the world making the judgment they're making. And there's no real intermediate level of idealization of like how good of a decider you would be to justify like stopping short, full of like short of full idealization, so full information and full rationality. So that's one thing, which is like, I think it's difficult to kind of appeal to like what you would have decided type arguments in justifying paternalistic interferences with people without just saying straight up like, we're going to impose on you our judgment of like, what you what we think is going to be best all things considered real. But I also think like people might have a considered judgment at the second order level that they want the discretion within their lives to make not so considered choices at the first order level. So for example, like it's really costly to gather information, like it's costly to research stuff. And so people might just say like, you know, like the cost of like gathering a different to put more information or deliberating about this so much is like not that worth it for me, like I'm good. I'm just going to do what my doctor tells me or I'm just going to do its cheapest or whatever. And they're just not going to think about it that much. And I don't think that we have like a good reason to think that we should value a person's considered judgment in particular cases versus her kind of considered judgment that she just wants to like have a space of autonomy to make sort of quick judgments in smaller cases and more discrete cases, I guess. It does seem like you get pretty quickly too because you could say, well, if a person fully informed and considered in their judgments would not eat, say, raw beef. And therefore, we're going to prohibit you from eating raw beef, even though you say you want to eat raw beef now, or a person with their fully informed and considered judgment who has, say, terminal cancer would not take this life, possibly life-saving drug, but it is still risky. And that just basically says, you know, it leads to saying that the FDA is the one making those fully informed and considered judgments for you, which, as we said, is problematic. Now, when it comes to that... Yeah. It has weird extensions in our cases. Like, it's hard to know how to even do the idealization because it's like, imagine a Jehovah's Witness person and you're thinking like, well, what would you think if you were like fully informed, fully rational? You had all the facts and like, you really knew the truth. And you wouldn't be a Jehovah's Witness. And you're like, you know what, you would know that you're like, that God actually doesn't prohibit this. That's what it implies. And so then, you're just like, interviewing with that person. Yeah. It implies that you wouldn't be, you wouldn't believe what you believe, you would stop, you would give up your religion and all these horribly paternalistic things. When it comes to the life-saving drugs, though, I think that the possibility of clinical trials issue is what the government has argued at different times when they said that if we let everyone try a possibly life-saving drug to... That they, you know, for terminal head and neck cancer, for example, to use a pointed example of the Abigail Alliance case, then we would be unable to find people to do a clinical trial where we have a control and a placebo and we have the drug. So we won't even be able to tell if the drug is efficacious. And that argument that the FDA has made has carried the day in the courts and a lot of economists and health professionals agree with that. But you'd think that that's not a good argument either. Yeah. Well, first of all, like this is assuming a backdrop where you can't incentivize people to participate in trials, for example, by like paying them. Right. So like the call this like the kind of like need to test argument, like we need to withhold access in order to give people good reason to participate in a trial. But that's assuming that like the only way that you could give a person good reason to participate in a trial was by giving them access to this drug. But if that were true, that would be that would make me have a concern about the trial design itself because I think that in order for a trial to be ethically designed in the first place, you would want it to be the case that you're genuinely uncertain about whether or not the test of drug is better than the existing standard of care. And so so you want to have a kind of principle of clinical equipoise. And so if you have this principle, which is that, you know, going into a trial, there should be a kind of genuine chance that like this does or doesn't beat the standard of care, the patients should have a rational reason to participate in the trial either way, right? You would think like, well, they have the standard of care, they have the trial participation. So if you could, especially if you could give them incentives paying people to participate in trials, for example, or other benefits like, you know, subsidized medical care or more careful monitoring, people should still have an incentive to participate in clinical trials. And if you think that on balance participating in the clinical trial would be worse than the standard of care for a patient. Well, that's a difficult practice to justify for the existing clinical trial framework. And like, these people who are participating in the trial are being subjected to this treatment, which is worse than the standard of care. I mean, of course, they could consent to it. But then if you think like, oh, people can consent to any risk for the trial in this way, then you could just pay them to do it in that way as well. So if we are going to hold trials to that kind of standard, then I think that people should have sufficient incentive to want to participate. Then the counter worry is like, well, maybe too many people would want to participate because it's like people would just be rushing into the trial because they'd all or not rushing into the trial, they'd be rushing to get the drug that they wouldn't have to participate in trial, they would just access the drug outside of the trial. But if we think that the drug is like so good that people are all going to want to access it outside of the context of a clinical trial, even if they could get paid or get subsidized medical care or more careful monitoring by participating in a trial, that should also make us a little bit worried about how the trial is currently functioning. Because if there's this drug out there that really clearly beats the standard of care, so much so that patients are flocking to use this investigational therapy, then that also indicates that like maybe the trial design wasn't meeting this kind of condition of equipoise already. And so that people should have been, you know, an existing trial should be moving more people into the treatment arm of those trials. But also I just don't think that more generally that advocacy testing requirements are necessary for researchers to learn about new drugs. And we can see this because we still have clinical trials that happen for drugs once a drug is approved for one condition and off-label. So we still see testing for drugs. Even after this initial approval trial. So like a lot of clinical trials today happen after approval. So people can have access to the drug that is being tested for them, but they still participate in the trial all the same. So I give in the book a couple of examples like this, like one of like the women's health initiative of like a post-market trial that was still testing efficacy even though efficacy or even though the drug was available off-label outside of the context of a trial. So I think there's a lot of reasons to be skeptical of this need to test argument, but also I think even if this were true, it wouldn't be justifiable to violate people's rights so that you could get good data about medical information. Yeah, that seems like often like a, yeah, you can't do human, you know, violate human rights on subjects to try and get medical data either. The Nazis did. So it seems like that that's a bad way of using humans. Yeah. So like Udu Shklaknak is a bioethicist who's worked on like HIV AIDS access, for example. And he is, he makes this point, which is like, look, even if there were really serious externalities to giving people access to potentially life-saving, experimental drugs, like investigational therapies, even if that had like, it made it really difficult to conduct research, even if it was like, in some ways, undermining child design, the people who are making a claim to access to these drugs are making a claim to preserve their own lives. And so like it's very rarely the case that you can violate a person's right of self defense, for example, on these types of cases for the sake of like scientific knowledge more generally, right? If a person has a defensive right, that has a lot of moral force. And I also think that's true, not just for defensive rights to preserve a person's life, but defensive rights more generally to preserve a person's health. Now we're recording this on May 31, 2018. And yesterday President Trump signed a right to try law, which reports to adjust some of these these problems. And for a while now, they there have been calls for freeing up access for terminally ill people. It happened in the 80s with with AIDS patients that's happened over different times. That right to try law is that I mean, is it is it better than before, but still not good enough? As you can tell, I don't think that goes far enough. I think that right to try, you know, it's a good first step, I think. And like a lot of states have already had right to try legislation. I think a lot of the arguments against right to try are like really misguided because, you know, for example, people will say against right to try. Well, it doesn't guarantee that people will have access to these drugs because the drug company can still say no. Well, yeah, but I think it's still progress if we're eliminating legal barriers between patients and accessing medication that could potentially help them. So it doesn't it doesn't do as much as I think some people think or hope it will. But I think it's a first step. And I think expressively, it's good. I think it's good to just affirm the fact that patients have a right to access therapeutics that people are willing to provide without the government interfering with them. So how does the world look in in in Jess's world when when we got rid of a bunch of this stuff and adjusted these things? How do how do patients try to find these drugs? How do they get information? How should the world look if you had your way? I mean, it might not look that different for most people. So you might think like, oh my gosh, pharmaceutical freedom. If people had the right to use any kind of a drug, like, you would just be able to buy heroin at Walgreens or you could access anything without it being prohibited. And yeah, I do think that that would be a better world. But just because you would have access to those types of drugs, like if you had access to any drug that you could possibly use, does that mean that you would necessarily like walk down to your local CVS and like buy a bunch of methamphetamine? Probably not. Like probably most people wouldn't use these drugs if they aren't already having a standing interest in using recreational drugs in this way. If you had the right to access drugs without prescription, maybe people sometimes would. But I think people are pretty conscientious about their health in a lot of cases. And they might think like, you know, I'm going to ask my doctor about that. And they might check in with a doctor even if they didn't have a prescription requirement. They might see if a drug is FDA certified, even if they weren't legally required to only use FDA certified drugs. Now it is true that some people might make different choices. But if they're making different choices, that might be an indicator that the current system is harming them by limiting their choices these ways. So people who access drugs that will currently require prescription, or so if that we didn't have prescription requirements, maybe some people would access drugs that currently require a prescription because they didn't have to pay a doctor's copay. And maybe it would have been better if they talked to a doctor. But I think we could do better at kind of communicating information to patients. And I think that, you know, right now, we are just already deciding that it's worth it that some people forego care because they can't afford to see a doctor to have the doctor recommend a drug, that that's a better trade off to make than letting people decide whether or not they should go pay to see a doctor to have the doctor recommend a drug versus just accessing a drug directly. I also think that if we did have more robust rights to self medicate, people might become more informed consumers. So I think that there is little incentive right now for people to educate themselves about the content of the drugs they're taking. And there's some limited evidence, which isn't great evidence, but it's kind of all we've got testing the effects of prescription requirements that suggests that people might even make more risky decisions because they're just like deferring to their doctors. So they're like, Oh, my doctor prescribed this. My doctor said it was okay. And people aren't really learning about their drug choices, considering the risks and benefits of the drug choices. They just are kind of offloading that deliberative process to the gatekeepers who are legally empowered to make those choices. But if people had rights of self medication, they might invest more in educating themselves about the nature of the drugs that they're using the nature of their condition. Right now, they have no incentive to learn more about the drug choices they're making. And so we view how people might make these decisions thinking about their current level of capacity. But I think that's a mistake because if people have the rights of self medication, they might have greater capacities to make informed decisions about drugs. A lot of times people will think like, about paternalism and paternalistic laws in terms of like helping people. But we think about the history of paternalism, paternalism is often used to kind of justify treating people in ways that are really disrespectful. So like there are like paternalistic justifications of not letting women own property or paternalistic justifications of violations of civil rights. And I think that there's a similar thing that happens here, which is like patients as a group, I think lack a kind of voice or power, which I think partly they're taking it back now with his right to try movement and medical marijuana advocacy. But historically, patients are kind of a vulnerable group. They've lacked a voice in this way. And they have like paternalism has been harmful to them, but they've sort of lacked a voice in these conversations in a way. And I think that, you know, the 1980s was really the beginning of like patients reframing rights of self medication as a sort of civil rights and human rights issue with like the AIDS Act movement. And I see this book and thinking about rights of self medication more generally, as sort of within that kind of broader historical sweep of talking about anti paternalism as also just sort of saying like talking about how it's disrespectful for the government to express that people are incapable of making self regarding decisions about their own lives and that the government public officials are not entitled to do that. And so I kind of see it as this kind of this continuous of that conversation. And then we should start thinking about rights of that self medication as this as continuous with human rights as continuous rights to make decisions about your own body. And having a kind of more respectful relationship between people and their government that way. Thanks for listening. Free Thoughts is produced by Test Terrible. If you enjoy Free Thoughts, please rate and review us on iTunes. To learn more, visit us on the web at www.libertarianism.org.