Jessica Flanigan

I am very thankful to the commentators in this symposium for engaging so thoughtfully with arguments for rights of self-medication. In this response, I will reply to the objections that the commentators raise. I will also argue that these objections raise deeper methodological problems for works in applied philosophy, and I will tentatively offer some comments on how philosophers should proceed in light of these problems. Then, I will discuss a set of more general problems with the argument that each of the commentators raises in their own way—problems associated with the ethics of risk. To close, I will describe a few recent developments in public policy, and I will discuss how these developments bear on the arguments I develop in Pharmaceutical Freedom.

This book explores our ethical responsibilities regarding health in general and disabilities in particular. Disability studies and human enhancement stand out as two emerging areas of research in medical ethics, prompting debates into ethical questions of identity, embodiment, discrimination, and accommodation, as well as questions concerning distributive justice and limitations on people’s medical rights. Edited by two ethicist philosophers, this book combines their mastery of the theoretical debates surrounding disability and human enhancement with attention to real world questions that health workers and patients may face. By including a wide range of high-quality voices and perspectives, the book provides an invaluable resource for scholars who are working on this important and emerging area of leadership and health care ethics.

In some views, philosophy’s glory days in bioethics are over. While philosophers were especially important in the early days of the field, so the argument goes, the majority of the work in bioethics today involves the “simple” application of existing philosophical principles or concepts, as well as empirical work in bioethics. Here, we address this view head on and ask: What is the role of philosophy in bioethics today? This paper has three specific aims: (1) to respond to skeptics and make the case that philosophy and philosophers still have a very important and meaningful role to play in contemporary bioethics, (2) to discuss some of the current challenges to the meaningful integration of philosophy and bioethics, and (3) to make suggestions for what needs to happen in order for the two fields to stay richly connected. We outline how bioethics center directors, funders, and philosopher bioethicists can help.

:Self-ownership theorists argue that many of our most morally urgent and enforceable rights stem from the fact that we own ourselves. Critics of self-ownership argue that the claim that people own their bodies commits self-ownership theorists to several implausible conclusions because self-ownership theory relies on several vague moral predicates, and any precisification of the required predicates is seemingly too permissive or too restrictive. I argue that this line of criticism does not undermine the case for self-ownership theory because self-ownership theory does not require precisification of each moral concept that it is based on and, even if it did, the theory’s alleged extensional inadequacy does not undermine its justification.

Libertarians (like me) generally disagree with orthodox Rawlsians (like Samuel Freeman) about whether Rawlsian principles of distributive justice are compatible with libertarianism. In this essay, I set out to explain why. IIn section 1, I describe the problem, which is essentially that libertarians think the Rawlsian framework does not rule out anti-statist, capitalist, and broadly libertarian approaches to distributive justice and orthodox Rawlsians think that it does. I propose that this problem arises because the Rawlsian framework is underspecified in two ways. First, the Rawlsian framework has a lot of moving parts, so people with different pre-theoretical intuitions can use Rawls’s theory, without error, to arrive at very different conclusions. I make this point in section 2. Second, orthodox Rawlsians advance justice as fairness at an intermediate level of idealization. In section 3, I argue that pitching the theory at this level inherits many of the problems with a non-ideal approach that addresses specific problems with the status quo as well as the problems with a purely ideal approach that addresses the otivating ideals and values. This approach also obscures more than it illuminates to the extent that it is often unclear whether arguments at this level of analysis are justified on principled or pragmatic grounds.

I argue that it is permissible for pregnant women to expose their unborn children to risks and injury. I begin with the premise that abortion is permissible. If so, then just as a pregnant woman may permissibly prevent an unborn child from experiencing any future wellbeing, she also may permissibly provide her child relatively poorer prospects for wellbeing. Therefore, it is permissible for pregnant women to take risks and cause prenatal injury. This argument has revisionary implications for policies that prevent medical research and drug use during pregnancy. It also explains why moralistic criticism of pregnant women is unwarranted.

Public officials should compensate the victims of wrongful conviction and enforcement. The same considerations in favor of compensating people for wrongful conviction and enforcement in other cases support officials’ payment of reparations to the victims of unjust enforcement practices related to the drug war. First, we defend the claim that people who are convicted and incarcerated because of an unjust law are wrongfully convicted. Although their convictions do not currently qualify as wrongful convictions in the legal sense, we argue that the same reasons for legally recognizing other wrongful convictions support conceiving of these cases as wrongful convictions. If so, then people who suffered wrongful convictions associated with unjust laws, like others who were wrongfully convicted, are entitled to compensation and reparation. We then argue that America’s drug laws are unjust laws. Therefore, people who were convicted of nonviolent drug offenses are entitled to compensation.

Patient-driven drug development is an emerging approach to pharmaceutical research that is forged in rare-disease communities and patient advocacy networks. Patients and their advocates increasingly engage in drug discovery and influence early-stage drug research as clinical trial participants or through compassionate-use programs. Some advocacy groups and patients also influence which therapies are developed by financing promising treatments that otherwise would not secure funding. Though some critics of patient-driven drug development worry about the ethical and scientific implications of this new approach to research, it also has several advantages over the current system. In this essay I argue that patient-driven drug development is morally permissible.

Which duties are enforceable? I argue that duties to respect people’s rights against interference are always in principle enforceable. People who fail to respect these rights are liable to be interfered with. I also argue that duties that correspond to other kinds of rights or moral reasons are not enforceable. People who fail to promote the interests or wellbeing of others, for example, are not liable to be interfered with. Both steps of this argument appeal to a premise that standards of enforcement should apply equally to everyone. If duties to respect people’s rights against interference were not enforceable in principle, then standards of liability and enforcement would be disproportionately burdensome to some and would allow for hypocritical sanctioning. Standards of liability and enforcement should treat people equally and not enable hypocritical sanctioning, so rights against interference are enforceable. In contrast, standards of enforcement would also disproportionately burden some people if people were liable to be interfered with on the grounds that they failed to promote other people’s interests or failed to act in accordance with other kinds of moral reasons. Or, if enforcing these other moral duties did not violate a desideratum of holding all to equal standards, standards that licensed enforcing these other duties would be excessively demanding. Since standards of liability should not be so demanding that they characterize all people as liable to be interfered with at all times, nor hold people to unequal standards of moral requirement, other kinds of rights are not enforceable.

Philosophers rely on four double standards when arguing for prohibitive antismoking policies. First, they hold addictive nicotine products to more restrictive standards than other threats to individual autonomy. Second, they hold the tobacco industry to more restrictive standards than other potentially harmful industries. Third, they hold public health officials to weaker moral standards than they would apply to other citizens. Fourth, they hold their own proposals to standards of ideal enforcement while citing the non-ideal effects of a non-prohibitive system. Many of the arguments in favour of restricting tobacco and nicotine products also overlook less prohibitive ways of preventing harmful use.

Recent arguments for the basic status of economic liberty can be deployed to show that all liberty is basic. The argument for the basic status of all liberty is as follows. First, John Tomasi’s defense of basic economic liberties is successful. Economic freedom can be further defended against powerful high liberal objections, which libertarians including Tomasi have so far overlooked. Yet arguments for basic economic freedom raise a puzzle about the distinction between basic and non-basic liberties. The same reasons that economic liberties and the traditionally defined list of basic liberties are basic can also be given for all other liberties. Therefore, high liberals and Rawlsian libertarians ought to accept almost all other liberties as basic, even liberties that may strike us as trivial, silly, or unimportant. This claim has revisionary implications for high liberalism. Namely, liberals should endorse strong institutional protections for almost all liberties, even at the expense of other social values.

The choice argument against sweatshop regulations states that public officials should not prohibit workers from accepting jobs that require long hours, low pay, and poor working conditions, because enforcing such regulations would be disrespectful to the workers who choose to work in sweatshops. Critics of the choice argument reply that these regulations can be justified when workers only choose to work in sweatshops because they lack acceptable alternatives and are unable to coordinate to achieve better conditions for all workers. My thesis is that the presence of unacceptable alternatives to sweatshop labor or barriers to coordination cannot justify sweatshop regulations such as minimum wage and maximum hour laws. Although officials should promote alternatives to difficult and dangerous sweatshop labor, they should not do so by limiting workers’ and employers’ options through coercive regulation. And the fact that sweatshop workers may face coordination problems does not undermine the claim that sweatshop workers choose to work in sweatshops, just as other workers face coordination problems but nevertheless make occupational choices. Furthermore, efforts to restrict sweatshop workers’ choices are morally risky and may not promote workers’ wellbeing or wellbeing in general.

Vaccine denialism and refusal threaten the public’s health and safety. When parents refuse to vaccinate their children they make it more likely that their children will suffer from a preventable illness and pass it on to someone else. Infants and people with compromised immune systems, the most vulnerable among us, cannot protect themselves from vaccine-preventable illnesses and are especially threatened by the reckless decisions of vaccine refusers. Philosophers, public health officials, physicians, and the public generally agree that vaccine refusers are not only mistaken, but that their choices can be injurious and immoral as well. Nevertheless, a minority of families declines to vaccinate their children, and communities are put at risk as their numbers grow.

Seat belt mandates seem like a paradigmatic case of justified paternalism. Even those who generally object to paternalism often concede that seat belt laws are justified. Against this near-consensus in favor of mandates, I argue that seat belt laws are unjust and public officials should not enforce them. The most plausible exceptions to a principle of anti-paternalism do not justify seat belt mandates. Some argue that seat belt mandates are not paternalistic because unbelted riders are not fully autonomous. Others claim that the decision to ride unbelted harms other people. Yet these attempts to defend seat belt mandates on non-paternalistic grounds cannot overcome the case against seat belt mandates. I therefore conclude that even seat belt mandates are unjust. With this comprehensive case against seat belt mandates, I demonstrate the more general difficulties in justifying any form of coercive paternalism.

Vaccine refusal harms and risks harming innocent bystanders. People are not entitled to harm innocents or to impose deadly risks on others, so in these cases there is nothing to be said for the right to refuse vaccination. Compulsory vaccination is therefore justified because non-vaccination can rightly be prohibited, just as other kinds of harmful and risky conduct are rightly prohibited. I develop an analogy to random gunfire to illustrate this point. Vaccine refusal, I argue, is morally similar to firing a weapon into the air and endangering innocent bystanders. By re-framing vaccine refusal as harmful and reckless conduct my aim is to shift the focus of the vaccine debate from non-vaccinators’ religious and refusal rights to everyone else’s rights against being infected with contagious illnesses. Religious freedom and rights of informed consent do not entitle non-vaccinators to harm innocent bystanders, and so coercive vaccination requirements are permissible for the sake of the potential victims of the anti-vaccine movement

I argue that public officials and health workers ought to respect and protect women’s rights to make risky choices during childbirth. Women’s rights to make treatment decisions ought to be respected even if their decisions expose their unborn children to unnecessary risks, and even if it is wrong to put unborn children at risk. I first defend a presumption of medical autonomy in the context of childbirth. I then draw on women’s birth stories to show that women’s medical autonomy is often ignored during labor. Medical interventions are performed during childbirth without women’s consent. Childbirth is risky and some coercive medical interventions may be understood as attempts to protect children and to prevent mothers from acting impermissibly. However, even if it is wrong to make risky choices during childbirth, women have rights to do wrong in these cases. Therefore, coercive medical interventions are impermissible during childbirth and institutions should adopt specific protections for obstetric autonomy.

I argue that young patients should be able to access neuroenhancing drugs without a diagnosis of ADHD. The current framework of consent for pediatric patients can be adapted to accommodate neuroenhancement. After a brief overview of pediatric neuroenhancement, I develop three arguments in favor of greater acceptance of neuroenhancement for young patients. First, ADHD is not relevantly different from other disadvantages that could be treated with stimulant medication. Second, establishing a legitimate framework for pediatric neuroenhancement would mitigate the bad effects of diversion and improve research on neuroenhancement and ADHD. Third, some pediatric patients have rights to access neuroenhancements. I then consider several objections to pediatric neuroenhancement. I address concerns about addiction, advertising, authentic development, the parent–child relationship and equal opportunity and conclude that these concerns may inform a framework for prescribing neuroenhancement but they do not justify limits on prescribing

In this essay I argue that the same considerations that justify the strong commitment to anti-paternalism that has been affirmed in bioethics over the past half century, also calls for anti-paternalistic public health policies. First, I frame the puzzle—why are citizens morally entitled to make unhealthy and medically inadvisable decisions as patients but not as consumers? I then briefly sketch the reasons why bioethicists typically reject paternalism. Next, I argue that those same reasons tell against paternalism in public health ethics as well. Patients do not waive their rights to make medically inadvisable decisions when they leave their physician’s care. James Wilson disagrees. After I sketch Wilson’s arguments for paternalism in public health policy, I then argue, contra Wilson, that public health paternalism is wrong for the same reason that medical paternalism is wrong, and that the prevalence of paternalism in public policy does not mean that paternalism is morally permissible. I discuss the state’s authority to enforce paternalistic policies and I sketch an anti-paternalist vision for health policymakers. To close, I consider several objections

I argue that asymmetries in taste and talent can explain markets in bodily services, just as they explain other kinds of work. While inequality is a powerful explanation for participation in bodily-service markets, such markets are not unique in their reliance on inequality. Finally, I address another kind of inequality that deserves our attention -- the advantage of the providers of bodily services over those who require them. While those who suffer from infertility or face the terror of organ failure may have a financial advantage over others, they may still be worse off than fertile and organ-rich people who suffer economic or social disadvantage. Egalitarians ought to concern themselves with the whole scope of disadvantage, not just economic disadvantage.

I argue that the provision of public health care cannot be used to justify coercive policies, including sin taxes. That is, states cannot paternalistically intervene to promote citizens’ health on the grounds that unhealthy behaviors are burdensome to public healthcare providers and taxpayers. I consider two justifications for a public healthcare system to illustrate this point. Many political philosophers and medical ethicists claim that healthcare is a right and that people are entitled to access health care services even if their lifestyle choices have caused them to have very expensive healthcare needs. I am sympathetic to this justification for health care, but if healthcare is an entitlement, then it is wrong to make access to that entitlement contingent on lifestyle choices or to demand that a person make certain lifestyle sacrifices so that she may exercise her right to access healthcare.

Veljko Dubljević (Citation2013) argues that Adderall and some forms of Ritalin should be available to healthy adults, but amphetamine and instant-release forms of methylphenidate should not be available because they are intrinsically debilitating substances that undermine users’ autonomous capacities. In this commentary I offer three responses to this argument. First, even though some drugs reliably undermine users’ life plans and autonomous capacities, policymakers should nevertheless permit drug use because the appropriate response to the value of autonomy is respect, not to promote autonomy. Second, Dubljević's argument rests on a dubious characterization of the psychology of addiction—empirical evidence suggests that addicts are autonomous when they choose to use drugs. Third, it is illiberal to permit or prohibit drugs based on a judgment about whether the potential benefits to the user justify the risks users face, since consumers have the authority to decide for themselves whether it is worth it to risk their health for the sake of pharmacological benefits, for either enhancement or recreation.

Many liberal egalitarians support laws that prevent people from making exploitative and unconscionable contracts. These contracts may include low-wage labor agreements or payday loans, for example. I argue that liberal egalitarians should rethink their support for laws that limit the freedom to make these illiberal contracts, as long as the contracts are voluntary and do not violate people’s other enforceable rights. Paternalistic considerations cannot justify limits on illiberal contracts because they are not only likely to misfire; they also express condescending and inegalitarian judgments of citizens. I then consider Seana Shiffrin’s argument that officials may avoid paternalism while still deterring illiberal contracts if they instead refuse to use public institutions to accommodate contracts that are contrary to the fundamental values on which those institutions are based. This argument encounters a dilemma. Officials may refuse to enforce illiberal contracts and ban private enforcement of illiberal contracts, but this strategy encounters the charges of paternalism it aimed to avoid. Or, officials may refuse to enforce illiberal contracts but tolerate private enforcement, but this approach would make the worst off members of society even more vulnerable and marginalized. Therefore, liberal egalitarians should support public enforcement of illiberal contracts because the alternatives are worse.