Jeffrey A. Singer
Below is an excerpt of the new book, Your Body, Your Health Care (Cato Institute 2025) by Jeffrey A. Singer, MD, a senior fellow in Health Policy Studies at the Cato Institute, a practicing surgeon, and a fellow of the American College of Surgeons.
Chapter One
A central tenet of the liberal tradition is that every individual has autonomy, or what philosopher John Christman calls “the capacity to be one’s own person, to live one’s life according to reasons and motives that are taken as one’s own and not the product of manipulative or distorting external forces, to be in this way independent.”
In the context of the clinician-patient relationship, autonomy means that health care practitioners must respect their patients’ decision-making capacity and their right to make their own decisions regarding their care, regardless of practitioners’ recommendations. Autonomy means a patient has both liberty and agency (the capacity to act purposefully).
We take respect for patient autonomy and the doctrine of informed consent for granted in modern times. Yet countless people died or suffered great harm over the centuries before these precepts became the norm. And, while autonomy is now an inalienable feature of the relationship between people and their health care providers, it receives short shrift in the relationship between people and their government. The context might be different, but the principle is the same.
In Principles of Biomedical Ethics, Tom L. Beauchamp and James F. Childress contend that a patient’s autonomy is paramount. They stress that health care providers must not coerce or manipulate patients into making health care choices that go against their interests or desires.2 Requiring clinicians to obtain informed consent from their patients before performing any tests or procedures is an indispensable component of respect for patients’ autonomy.
As mentioned in the introduction, the landmark New York Appeals Court case Schloendorff v. Society of New York Hospital established patient autonomy as a legal principle. But Schloendorff was the culmination of other cases that involved doctors performing procedures on patients without their consent. Most notable among these are Mohr v. Williams and Pratt v. Davis, both in 1905. In Mohr, a surgeon, Cornelius Williams, changed his mind when Anna Mohr was under anesthesia and decided to operate on her left ear instead of the right one. She had consented only to surgery on the right ear. Williams’s decision left Mohr with impaired hearing in both ears. In the latter case, Edwin H. Pratt, a surgeon, performed a hysterectomy on Parmelia Davis to treat her epilepsy, which many doctors once believed was uterine in origin, without her consent.4 The courts decided both cases in favor of the plaintiffs.
In Mohr v. Williams, the Minnesota Supreme Court concluded that an operation that is performed without the consent of the patient is wrongful, except in a life-threatening situation, which was not the case with Anna Mohr. In Pratt v. Davis, the court elaborated further:
Under a free government at least, the citizen’s first and greatest right, which underlies all others—the fight to the inviolability of his person, in other words, his right to himself…
The opinions rendered in these earlier cases presaged Benjamin Cardozo’s more explicit and timeless 1914 paean to autonomy in Schloendorff:
Every human being of adult years and sound mind has a right to determine what shall be done with his own body…
The horrors made public by the Nuremberg war crimes trials following the end of World War II further fueled support for the doctrine of informed consent. Canterbury v. Spence (1972) elaborated on informed consent in the case law by establishing that clinicians must explain not only what a procedure is and why they believe it is necessary, but also the procedure’s risks—including complications—and its benefits. The DC Circuit Court of Appeals concluded that doctors engage in manipulation if they deprive patients of this information, thus indirectly coercing them.
Just as health care providers violate their patients’ autonomy by manipulating or coercing them, the government violates autonomy when it deprives them of their choice of health care provider, denies them access to a drug or therapy, or forbids and even punishes them for consuming products or engaging in activities of which the government disapproves.
Nonadults, the Mentally Impaired, and Autonomy
Children, minors, and the mentally impaired lack the mental and cognitive skills required to exercise full autonomy. Philosophers and legal scholars have debated this complex and thorny issue for centuries. From the natural-rights perspective, many philosophers tie human rights to rationality and the ability to live and make decisions independently that it bestows.
Parents are responsible for bringing their children into existence. Until a child’s faculties develop from a state of nonrational dependence to a state of rational independence, parents have a moral obligation to attend to their children’s welfare and to prepare them for autonomous adulthood. As legal scholar Eugene Volokh writes:
Children, up to a certain age, need someone to make decisions for them, with an eye towards putting them in the best position to exercise their liberty once the children grow up. Someone needs both to shield them from dangers that may keep them from surviving to adulthood (disease, accidental death, starvation, criminal attack), and to positively provide them the things they need (education, self-control, and the like).
That someone can be the parents, or some interested third party—in principle, perhaps a family member or someone else, but (systemically) likely government officials. But parents, generally speaking, are much more likely to love the child and to know the child than any third party would.
The government recognizes and supports the authority of parents to exercise fiduciary authority over their children until they reach an age when they can exercise rational independence. However, parental authority is not boundless, and the state may step into that role if parents neglect, harm, or otherwise exercise their authority in bad faith. For instance, parents may not abuse their children, sell them to other people, or refuse to let them have lifesaving procedures. Similar principles apply to people who have cognitive or mental disabilities that don’t let them achieve rational independence.
The tension between parents’ authority and their moral obligations to their children is at the center of many contentious issues that legal and ethical scholars have long debated. Health care practitioners sometimes are caught in the crossfire when faced with therapeutic dilemmas. Examples include parents barring their children from medical treatment due to their religious beliefs, performing “normalizing surgery” on infants born with “intersex disorders,” and permitting irreversible “gender-affirming” treatments and procedures on young children and adolescents.
These issues are too complex to address in this book adequately. The book’s remaining pages will refer only to the autonomy of rational adults. In that regard, as I will discuss in later chapters, it is unwise for policymakers to target policies at adults based on concerns about children. Many laws prohibit children from indulging in various adult activities or substances for good reason. Policymakers should resist the temptation to ban adults from them in order to prevent children from gaining access. Such bans assault adults’ autonomy.
The Right to Self-Medicate
The notion that competent adults have the right to self-medicate is a corollary of the doctrine of informed consent. The doctrine asserts that individuals have a right to refuse whatever medical treatment they choose, even if doing so will harm them. The right to self-medicate is the idea that individuals likewise have a right to ingest whatever medicines and use whatever medical treatments they choose, even if doing so will harm them.
To British philosopher John Stuart Mill, only the affected individual is best qualified to judge whether a risk is worth taking because no other person cares more about that individual’s best interest. Even if patients make the wrong decisions, Mill maintained that society should regard them as if they are the experts about what is in their best interests because they have insights into their own priorities for well-being and happiness that no other person can have. Mill argued against the government blocking people from purchasing certain drugs unless they obtained a physician’s prescription, arguing that it interferes with patients’ choices and may make certain drugs more expensive or more difficult for them to get.
The right to self-medicate is integral to self-ownership and autonomy. Philosophy professor Jessica Flanigan, who specializes in bioethics, writes that respect for the right to self-medicate is so embedded the liberal tradition that 18th-century political thinkers would regularly affirm it:
For example, Thomas Jefferson assumes that self-medication is a fundamental right in arguing for freedom of conscience when he wrote, “Reason and free enquiry are the only effectual agents against error. Give a loose to them; they will support the true religion, by bringing every false one to their tribunal.… If it be restrained now, the present corruptions will be protected, and new ones encouraged. Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now.”
Flanigan argues that government-mandated premarket approval and prescription requirements are forms of coercive medical paternalism that interfere with individual autonomy as much as when doctors lie to patients about the patients’ diagnoses, prognoses, or treatment options or perform unauthorized procedures on them:
Paternalism is just as wrong at the pharmacy as it is in the doctor’s office. Medical autonomy is an important value in both contexts, so states should protect patients’ rights against unwanted medical interventions from physicians and from unwanted limits on access by public officials. Both informed consent requirements and rights of self-medication will permit people to make decisions that their physicians would advise against.
Flanigan identifies two areas where the government may ethically restrict the ability to self-medicate. One is antibiotics. Consumers who use antibiotics indiscriminately promote the development of antibiotic-resistant organisms, which can potentially expose others to the risk of harm or even death from infectious diseases. This is what economists call a negative externality.
The other area pertains to children and to adults with severe cognitive disabilities who have a capacity for autonomy not dissimilar to that of children. Such individuals are unable to make medical decisions in accordance with the doctrine of informed consent and therefore cannot claim the right to self-medication. Flanigan argues that it is therefore ethically permissible to restrict their access to medications.
The doctrine of informed consent and the right to self-medicate are inextricably linked. Any argument that individuals do not have a right to self-medicate necessarily undermines the doctrine of informed consent. It is impossible to infringe on one without threatening the other. If one is valid, so is the other. If one supports the doctrine of informed consent, one must logically respect the right to self-medicate. Both informed consent and the right to self-medicate are features of autonomy.
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