http://www.scotusblog.com/2006/11/blog-round-up-14/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 http://www.scotusblog.com/2006/11/blog-round-up-14/#comment-10571 Jacob Berlove Fri, 03 Nov 2006 04:13:26 +0000 http://www.scotusblog.com/wp/uncategorized/blog-round-up-14/#comment-10571 While I agree with Professor Volokh that there should be (and is) a constitutional right to self defense, and that applies, based on the common law understanding, even if the victim isn't morally culpable, I don't think the analogy should extend to the organ market because a person's right to self defense certainly doesn't extend to endangering other people who don't pose a direct threat. (Certainly few would argue, for instance, that I have a right to kill someone to steal his or her kidney.) Allowing the selling of organs can cause all sorts of harms, and the people victimized by the opening of the market pose no direct threat to those who need the organs. I do agree with the DC circuit decision in <i>Eschenbach</i>, however, that a terminally ill person has a right to potentially life-saving medication. As long as safeguards are put into place to make sure that no-one who won't die without the medication gets it anyway, there is no party who doesn't pose a threat (indeed, no party at all) being harmed by the "self-defense" accessing of the medication. I think that a very strong case could be made, however, that no amount of safeguards would prevent people who really shouldn't be selling their "spare" organs from doing so. While I agree with Professor Volokh that there should be (and is) a constitutional right to self defense, and that applies, based on the common law understanding, even if the victim isn’t morally culpable, I don’t think the analogy should extend to the organ market because a person’s right to self defense certainly doesn’t extend to endangering other people who don’t pose a direct threat. (Certainly few would argue, for instance, that I have a right to kill someone to steal his or her kidney.) Allowing the selling of organs can cause all sorts of harms, and the people victimized by the opening of the market pose no direct threat to those who need the organs. I do agree with the DC circuit decision in Eschenbach, however, that a terminally ill person has a right to potentially life-saving medication. As long as safeguards are put into place to make sure that no-one who won’t die without the medication gets it anyway, there is no party who doesn’t pose a threat (indeed, no party at all) being harmed by the “self-defense” accessing of the medication. I think that a very strong case could be made, however, that no amount of safeguards would prevent people who really shouldn’t be selling their “spare” organs from doing so.

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