This Article examines the persistent American demand for freedom of therapeutic choice as a popular constitutional movement originating in the nation’s earliest years. It also shows how multiple concepts of freedom, in addition to bodily freedom, have contributed to the concept of a constitutional right to medical liberty. There is a deep current of belief in the United States that people have a right to choose their preferred treatments without government interference. Cries of “Death Panels” are routinely directed against health care reform proposals that might limit patients’ access to medical products and procedures. FDA is furiously attacked, on freedom of choice grounds, for withdrawing approval of drugs. Polls show overwhelming support for the legalization of medical marijuana. This attitude of therapeutic libertarianism is not new. Drawing mainly on primary historical sources, this Article examines early American arguments in favor of freedom of therapeutic choice. First, it considers the views and statements of Benjamin Rush, an influential founding father who was also the most prominent American physician of his era. The Article then analyzes the antebellum battle against state medical licensing laws waged by botanical practitioners and their supporters. This triumphant struggle, though occurring almost entirely outside of court, was waged in explicitly constitutional terms. It thus offers one of the most striking examples of a successful popular constitutional movement in American history. The Article also demonstrates that at its origins, American commitment to freedom of therapeutic choice was based on notions of economic freedom, freedom of religion, and freedom of inquiry, as well as bodily freedom.
Grossman, Lewis, "The Origins of American Health Libertarianism" (2012). Articles in Law Reviews & Other Academic Journals. 361.