Rethinking Prescription Requirements
DOI:10.1093/oso/9780190684549.003.0003
Abstract and Keywords
Even those who reject the claim that patients have the right to use drugs for non-medical reasons should still support prescription drug reform though, because some prescription requirements, by making preventive and emergency treatments inaccessible, curtail the goal of promoting the public’s health. In these cases, prescription drug reform is especially urgent.
Pharmaceutical policy should not discriminate between legitimate and illegitimate drug users, meaning that patients should have access to drugs for medical and non-medical purposes. This principle supports greater access to deadly and addictive drugs. But even if one doesn’t accept the argument that people should have legal access to deadly and addictive drugs, people should at least be permitted to access safe and non-addictive drugs for medical and non-medical uses. People have especially urgent claims to access drugs that protect people from harm and save lives. And there is a role for prescription requirements in limited cases. Dangerous and addictive drugs should remain behind the counter to prevent children and mentally incompetent people from accessing them. Finally, antibiotics should be regulated by a prescription system because antibiotics misuse could violate others’ rights.
Keywords: prescription requirements, self-medication, euthanasia, recreational drugs, antibiotics, neuroenhancements, preventive medicine
The earliest accounts of governmental regulations of pharmaceuticals date to Roman law. In 331 BC, officials found hundreds of women guilty of administering deadly poisons and punished the offenders by literally giving them a taste of their own medicine.1 Except insofar as drugs were used for crimes, abortions, or euthanasia, governments largely overlooked medicine throughout ancient history.2 By the ninth century, private professional cooperatives began prohibiting fraudulent drug sales among their members.3 As medicine developed as a prestigious, intellectual profession in the tenth century, governments took an interest in drug regulation.4 And from then on, pharmaceuticals in Europe were regulated by legally certified professional guilds that were charged with upholding the standards of their profession.5 These regulations coincided with more (p.65) general increases in state power because high-status medical professionals could then use public power to limit access to medicines, codify professional training, and legally enforce codes of ethics.6
Set against this historical narrative, the relatively laissez faire era of the nineteenth century marks a brief respite from the steady rise of regulatory states.7 Unprecedented economic growth, democratization, and the rise of Enlightenment ideals in Europe and North America produced fairly laissez-faire policies, particularly in the United States and Australia where governments were relatively weak.8 In the nineteenth century, American policymakers widely affirmed rights of self-medication.9 Daniel Carpenter writes:
Votaries of self-medication frequently voiced their support for stronger labeling disclosure requirements for drug manufacturers, in part out of the belief that the intelligent layman needed maximal information to render an informed pharmaceutical purchasing decision. Yet the supporters of auto-therapy usually disdained state and federal regulatory measures. One of the most relevant political implications of their ethic was a time-honored “right of self-medication.” In operation, this (p.66) included the absolute liberty of the consumer or patient to purchase any and all medications for the amelioration of his or her ailments. Whatever the disease, and whatever the purported cure, the layman should be able to exercise his own scientific judgment in drug purchasing decisions.10
Support for self-medication was also tied to a prevalent belief in economic liberties. Martha Mitchell writes, “Any effort to legislate on the subject raised the cry of monopoly and destruction of individual right.”11
It is unclear whether relatively unfettered access to drugs was good or bad for public health in nineteenth-century America. On one hand, trained physicians were expensive and scarce, so most people lacked reliable access to medical experts. Without rights of self-medication, useful medicines, such as smallpox vaccines and painkillers, would have been inaccessible. By the mid-nineteenth century, pharmacists and druggists were the first-line providers of medical treatment.12 Druggists bandaged wounds and provided optometry, dentistry, and midwifery.
They also examined imported medicines, compounded new drugs, and advised patients about the risk and benefits of new treatments.13
On the other hand, medicine was very dangerous at the time. Before the germ theory of disease, even physicians were likely to do more harm than good. Uninformed patients acting alone were especially vulnerable to the dangers of misuse, and of adulterated or ineffective drugs. As the pharmaceutical industry evolved, people developed new drugs to sell and pharmaceutical advertising became more prevalent. Concerns about addiction grew amid widespread opiate and narcotic consumption.14 In response, physicians’ attitudes toward narcotics (p.67) changed, and they began publishing calls for more effective restrictions on the sale of narcotics to children under ten and pregnant women.15 States passed alcohol and opium prohibitions with varying degrees of success, and physicians stopped recommending narcotics.16 With these reforms, the typical addict changed from a middle-class woman to a low-status male, and public attitudes toward intoxicants hardened.17 But it took the Elixir Sulfanilamide tragedy in the early twentieth century to sway public support away from self-medication in favor of federal regulation.18
Today, most drugs require a prescription. I have argued that these prescription requirements can be harmful and that they violate patients’ rights of self-medication. Specifically, I propose that public officials should not prohibit competent adults from purchasing prescription-grade drugs without authorization from a physician. This is not to say that all pharmacies should provide all forms of drugs on demand. It is only to say that vendors and consumers should not be prohibited from selling and buying drugs. To prevent misuse by minors and incompetent adults, some drugs should be sold behind the counter. In these cases pharmacists should serve as gatekeepers, in the same way that bartenders prohibit minors from purchasing alcohol today.
In this chapter, I develop a further defense of a comparatively laissez-faire approach to prescription drugs. I begin by making the case for the most controversial kinds of prescription drugs—deadly and addictive drugs. If I am correct that prohibitions on these kinds of drugs cannot be justified, then these arguments establish a presumption against prohibitions on non-deadly and non-addictive drugs too. My more general point is that pharmaceutical policy should not discriminate between legitimate and illegitimate drug users. Even if one does not accept my arguments about deadly and addictive drugs, one may accept the more general point that people should at least be permitted to access safe and non-addictive drugs for medical and nonmedical uses.
I then consider which prescription drug policy reforms are most urgent. I argue that the strongest case of reform concerns prescription requirements that violate rights and threaten public health. For example, people should be permitted to access drugs that protect them from pregnancy, HIV transmission, or overdose without a prescription. Addiction cessation therapies, insulin, and (p.68) asthma inhalers, and other safe and potentially lifesaving drugs should be more broadly accessible as well.
In closing, I argue that there is a role for prescription requirements in limited cases. Dangerous and addictive drugs should remain behind the counter to prevent children and mentally incompetent people from accessing them. For behind-the-counter drugs, people may voluntarily “opt-in” to the prescription system, and employers and insurance companies may require them to do so. And some drugs, such as antibiotics, should be regulated by a prescription system because antibiotics misuse could violate others’ rights.
3.1 Deadly Drugs
Consider the following argument against prescription requirements.
(P1) Competent adults have the right to purchase deadly drugs without a prescription.(P2) If a person has the right to purchase deadly drugs without a prescription, then she should also have the right to purchase dangerous, harmful, or ineffective drugs without a prescription.(C) Therefore, competent adults have rights to purchase drugs without a prescription.
In other words, if people in particular circumstances have rights to purchase and use drugs that end their lives, then they have rights to purchase and use less dangerous drugs as well. The first premise states that competent people have the right to purchase and use deadly drugs without a prescription. The argument is not limited to terminally ill people or people with painful chronic diseases.
Arguments against hard paternalism in the previous chapters support the first premise, that competent people have the right to end their lives without prior authorization from a physician or public officials. To further motivate this argument, consider the example of Iris and Don Flounders, an Australian couple who were married for over sixty years. Don had terminal and incurable mesothelioma, a painful form of lung cancer. Iris was not terminally ill, but she had long held that she did not want to live without her husband. As Don’s illness progressed, both Don and Iris wanted to die. The Flounders traveled to Mexico to obtain pentobarbital, which is used to euthanize animals and is not available in most developed countries, including their home country of Australia.19 Before (p.69) their deaths, Don and Iris recorded a video explaining their choice and arguing for the right to die. In it Don said:
I knew that I would want to have the choice at the end as to how and when I die. We both very much resented the fact that we had to travel halfway ’round the world just to have the choice. We should have been able to get this drug at our local pharmacy, to be put safely away just in case, for the future.20
Iris added, “When we got the drugs I thought I might not want to live on without Don. Three years on, my thinking is the same. We decided this together. No one encouraged us, quite the opposite.”21 The couple was found dead in their home, arm in arm.
On my view, Don Flounders was correct when he claimed that he should have been able to buy pentobarbital at his local pharmacy, just as he should have been able to buy most other drugs. Rights of self-medication entail the right to use deadly drugs just as rights of informed consent entail the right to refuse lifesaving treatment. Moreover, deadly drugs provide benefits to patients who judge that their lives as a whole would be better if their remaining life were shorter and therefore have a legitimate interest in using deadly drugs.22 For example, patients who suffer from degenerative diseases or debilitating, treatment-resistant depression may choose to use deadly drugs to preserve the dignity of their lives as a whole.23
This is not to say that deadly drugs ought to be sold alongside cough syrup and vitamins. Rather, deadly drugs should be sold behind the counter so pharmacists could assess a customer’s capacity and enforce age requirements. Against this proposal, one may raise several empirical concerns. First, one may be concerned that deadly drugs will be used in crimes, even if they are sold behind the counter. Though less than 1 percent of all homicides in recent years are due to poison, the possibility of homicidal poisoning is still a legitimate concern, especially because most homicidal poisonings are against socially vulnerable populations, such as infants and the elderly.24 Second, one may worry about accidental (p.70)poisonings. Already, over a quarter of all accidental deaths in the United States are due to drug poisoning, and perhaps the presence of deadly drugs in people’s homes could worsen that problem.25 A third empirical concern about relatively unrestricted access to deadly drugs is that it would increase the rate of successful suicides. Before turning to more principled objections to this proposal, I will address these empirical concerns.
In response to concerns about homicidal and accidental poisonings, I agree that a pharmacist may permissibly treat deadly drugs differently from other drugs but disagree that they may prevent most competent adults from purchasing them. Instead, I propose a regulatory framework similar to the regulation of handguns in countries that permit handgun ownership. For guns, a system of screening, registration, and liability avoids the problems of overcriminalization and black markets, which are associated with a more prohibitive policy.26 And such a system also does not violate people’s rights of self-preservation or prevent legitimate and permissible gun ownership.27
Similarly deadly drugs should be sold behind the counter to enable screening for age and capacity, without violating competent adults’ rights to die. Some gun-licensing laws require that potential owners submit to a background check and psychiatric evaluation and wait for several weeks before receiving their guns. Similar licensing requirements may be applied to the sale and possession of deadly drugs to mitigate the danger of mentally incompetent people using the drugs to harm themselves or others. Gun registration requirements ensure that guns can be tracked if they are stolen or used in crimes. Registrations for deadly drugs can play a similar role. Standards of strict liability for gun owners ensure that people will store their guns safely to prevent theft, accidental injury, or misuse. Again, standards of strict liability may also apply to the possession of deadly drugs to prevent accidental or non-consensual poisonings.
In response to the concern that the sale of deadly drugs would cause more suicides, we should first question the assumption that it would be a problem if more patients chose to end their lives if given the choice to use deadly drugs. If greater access to deadly drugs caused an increase in suicides, one may infer that people are currently suffering and that demand for deadly drugs exceeds the current level of legal access in most places. But even if we grant that increased suicide rates would on balance be a negative result, there is little empirical evidence (p.71) to support the claim that more access to deadly drugs on its own would make suicide significantly more prevalent.
In Switzerland, right-to-die organizations are currently permitted to provide and administer deadly drugs and euthanasia to competent adults, even those without medical conditions. A recent study of these organizations found that weariness of life was a prevalent reason for suicide in addition to medical conditions, but very few healthy young people used the clinics’ services even though they had the option.28In Mexico, patients have de facto access to deadly drugs because pentobarbital is available at veterinary supply stores without a prescription.29 But Mexico has a suicide rate that is one-third of the suicide rate in the United States. Suicide rates depend far more on cultural factors, such as widespread Catholicism, than on the availability of easy methods of suicide. Countries with comparatively high suicide rates such as South Korea, China, and Japan also have strong norms of social shaming, and suicide is often a response to humiliation. The empirical assumption that access to deadly drugs would substantially increase suicide rates is therefore unwarranted.
Yet few governments explicitly allow the sale of deadly drugs for human use. Most US states and developed countries do not allow patients to purchase deadly drugs. Most countries and states that do permit assisted dying require that a patient have an illness, as well as authorization from a physician or some oversight by a health professional. In Oregon, for example, patients with terminal illnesses are permitted to obtain prescriptions for a lethal dose of medication but they cannot purchase lethal drugs without a prescription. Since competent adults are entitled to end their lives, policies that prohibit people from accessing deadly drugs presumptively violate those rights.
Several philosophers also deny that competent adults are entitled to end their lives and that prohibitive policies therefore violate rights. David Velleman, for example, rejects the first half of this claim. He argues that the general arguments against paternalism do not justify a right to die in most cases. Specifically, Velleman argues that people do not have a right to end their lives in order to prevent suffering.30 On his view, a person may only end her life in order to preserve the dignity of her life as a whole. Velleman’s argument is as follows. First, the reasons we must usually respect people’s choices derive from the value of autonomy. When a person’s choice would undermine her (p.72) autonomy, though, she cannot appeal to the value of autonomy as a reason to respect that choice because her choice is inconsistent with the value of autonomy. Therefore, someone who asserts that she has a right to end her life to make her life better is committed to a kind of contradiction. On one hand, she holds that her autonomy is so important that it must be respected, even when she is making a very destructive choice. On the other hand, she holds that her autonomy is of so little value that she may destroy her autonomous capacities to avoid further suffering.
Velleman does not conclude that access to deadly drugs ought to be prohibited. But he does conclude that if deadly drugs were prohibited, it would not violate a person’s right to die because no such right exists. The rights people have in virtue of the value of their autonomous capacities do not include the right to destroy their autonomous capacities. So when it comes to public policy, a person’s right to die is not a barrier to permissible prohibition of euthanasia and physician-assisted dying, though it may be wrong to prohibit assisted dying for other reasons.
Yet Velleman’s arguments against the right to die rely on the implausible assumption that simply because a person’s authority to make decisions is derived from the value of her autonomy, that she is rationally committed to the claim that her autonomy has the kind of value that one cannot permissibly destroy. In this way, Velleman’s arguments against the right to die seem to prove too much because the same considerations that Velleman cites in favor of the claim that a person has no right to destroy her autonomous capacities would seem also to support the claim that people have no rights to reduce their capacities. And if so, then this would imply that people had no right to stay up late, ride roller coasters, stand on their heads, watch reality television, or fall in love, because all of these activities reliably hinder one’s autonomous capacities. Which, insofar as Velleman’s position could be deployed in favor of legal limits on the right to die, would also mean that on this account people’s rights were no barrier to regulation or prohibition of these activities either.
Another argument in favor of paternalistic prohibitions of deadly drugs is that some people who attempt suicide are subsequently grateful that they were prevented from succeeding. Danny Scoccia, for example, argues that if a choice is the kind of choice people subsequently regret and if prohibiting it does not limit people’s autonomy too much, then paternalistic limits on that choice are permissible.31 Scoccia’s defense of hard paternalism does not consider whether those subject to prohibitive policies are subsequently glad that they were prevented from choosing to die because their preferences changed to adapt to their circumstances, nor does he consider whether people regret attempting suicide because to attempt suicide is stigmatized. If so, then these explanations for (p.73) people’s preferences for prohibitive policies might undermine Scoccia’s argument because those preferences are a product of the very prohibitive policies they are used to justify. For example, if a person were not prevented from choosing to die, he would not subsequently change his mind and regret his choice; so the possibility of regret cannot justify preventing people from successfully choosing to die, even if those who are prevented from choosing to die do regret their choice. And preventing people from using deadly drugs may perpetuate the stigma associated with the choice to use deadly drugs, which could cause people to report a preference for a less stigmatized choice.
Even if people legitimately have a preference to use deadly drugs but change their mind after they were prevented from using deadly drugs and genuinely regret their choice, people would still have a legitimate claim against being prevented from using deadly drugs. As an analogy, imagine a person who loves to eat cheese and ice cream but would benefit if she lost weight. It would be wrong to inject her with a poison that made her lactose intolerant but otherwise did not inhibit her autonomy at all. Even if the poison were administered on the grounds that she would subsequently be happy that she was prevented from eating dairy because it caused her to lose weight, which was a benefit on balance, poisoning would be wrong. Even if she were subsequently grateful that she was prohibited from eating dairy, poisoning would be wrong. Though this case admittedly trivializes the subject matter, it also shows that a person’s subsequent endorsement of an intervention is often irrelevant to the ethics of interference.
Scoccia claims that paternalistic policies can be justified insofar as (1) paternalistic policies could be enforced without limiting people’s autonomy too much and (2) people would otherwise regret self-destructive choices and (3) people would be grateful for prohibitive policies if they were in effect. But to justify banning deadly drugs, Scoccia would also need to show that (4) public officials are entitled to prevent people from making choices they would regret. Scoccia implicitly assumes that (4) is true, but there is reason to doubt this. We would not accept this treatment from other people in our lives even if their conduct met conditions (1‒3). If I sign a mortgage agreement that I cannot afford, I may not value my freedom to take out a mortgage and later regret my choice. If I were prevented from taking out the mortgage, I might be grateful for it. Still, it would be wrong for someone in my life to coercively prevent me from signing the mortgage agreement. For such a defense of hard paternalism to succeed, Scoccia must show why public officials are entitled to paternalistically coerce competent decision-makers where others are not.
Others object that medical professionals should not facilitate patient’s deaths because it is wrong for health workers to be complicit in their killing.32 On my (p.74) view, it is morally worse to prevent a patient from choosing to use a deadly drug than to provide her with the drug. But even if we granted that health workers should not be in the business of facilitating people’s deaths, this consideration also does not justify a prohibition of deadly drugs. If anything it supports the sale of deadly drugs because patients could purchase drugs directly from willing vendors, unlike some systems that are currently enforced that require supervision and authorization by a physician.
A related empirical argument is that patients would feel pressured to choose death either as a result of explicit or implicit encouragement from their physicians or loved ones.33 Were patients legally permitted to access suicide drugs, they might feel pressure from people around them (even if no one ever explicitly pressures them) to spare people from the emotional and financial burdens of continuing care. I am sympathetic to the claim that patients should not feel pressured, implicitly or explicitly, to end their lives. But prohibiting the sale of deadly drugs on these grounds would amount to prohibiting the sale of deadly drugs because many of us will disagree with certain people’s reasons for ending their lives. It is not our place to decide which reasons should inform patients’ life and death decisions, and, in any case, it would be wrong to limit all patients’ rights out of concern for this minority of patients.
In a similar vein, some critics of legal euthanasia worry that the quality of medical care would diminish if patients were able to end their lives.34 Or that if deadly drugs were available, insurance providers would deny disabled and sick patients pain relief and palliative care options.35 Some critics fear that widespread acceptance of suicide would diminish social support for providing health services to sick and disabled patients. These empirical concerns are controversial. In the United States, the state of Oregon has some of the most extensive hospice services in the country, despite the availability of deadly drugs for terminally ill patients.36 Even if these concerns are warranted, the objections are (p.75) addressed not to the use of deadly drugs but to failures of patient care. Sick and disabled patients are entitled to quality medical care and the option to use deadly drugs; the right to one is no threat to the other.
Together, these arguments support (P1) that people have rights to purchase and use deadly drugs (subject to some regulation) without authorization from a physician. (P2) states that if a person has the right to purchase deadly drugs without a prescription, then she should also have the right to purchase dangerous, harmful, or ineffective drugs without a prescription. This premise requires a further defense as well.
Bertrand Russell wrote, “Drunkenness … is temporary suicide. The happiness it brings is merely negative, a momentary cessation of unhappiness.”37 Presumably, the same can be said for intoxication more generally. If suicide is permissible, why should the temporary suicide of intoxication be held to a higher standard? Yet the two are different in one important respect. If a person makes a deadly choice, by necessity she will not live to suffer the consequences. But if a person makes a dangerous and harmful choice, such as misusing a drug for recreational purposes, she will live to suffer the consequences. Therefore one may argue that it doesn’t follow from the fact that people have a right to use deadly drugs that they have a right to use dangerous drugs.
Consider for example the thought, originally raised by Derek Parfit, that we may have reason to be paternalistic toward others on behalf of their future selves. This argument arises because Parfit thinks that a person’s future self is, to a degree, a different person than her present self. For this reason, it may be rational for a person to act in ways that impose great costs on her future self for the sake of benefits to her present self. But Parfit thinks that imprudence of this sort is immoral, even if it is not irrational, because one’s future self is to some extent a different person.38 So serious imprudence ought to be prohibited because it is immoral to harm one’s future self just as it is immoral to harm another person. People who survive their very imprudent choices, as much as survival is possible for anyone, harm other people, and are therefore liable to be interfered with. Parfit writes:
Since we ought to believe that great imprudence is seriously wrong, we ought to believe that we should prevent such imprudence even if it involves coercion. Autonomy does not include the right to impose upon oneself, for no good reason, great harm. We ought to prevent anyone from doing to his future self what it would be wrong to do to other people.39
(p.76) For the sake of argument, let’s grant the first premise that people have a right to die and grant Parfit’s claim that one’s future self is in some relevant sense a different person. If so, then Parfit says it is wrong to harm that person through one’s imprudence, so the second premise of my argument would be false.
Parfit concedes that there may be instrumental reasons to allow some imprudence. For example, allowing some imprudence helps people learn from their mistakes. Others reject Parfit’s case for paternalism on the grounds that each person has a strong interest in living her own life, which she can only do if she is free from paternalistic interference.40 Yet even if people do not learn from their mistakes or have a particularly strong interest in living their own lives, Parfit’s argument still does not support paternalistic interference because were it not for one’s imprudent choices, one’s future self would not exist at all.
Consider an analogy to procreation. As Parfit famously argued, if a woman has a child at fourteen and as a consequence her child has a very bad start in life, her child still has not been made worse off because had she terminated her pregnancy (assuming that women have rights to do so) or waited to conceive, the child would not have existed at all.41 Similarly, say a person has a right to die at any point but chooses instead to make a series of imprudent choices that harm his future self. His future self is not worse off, because had he chosen differently, the future self either would not exist or would have been a very different person than the person he is now. Either way, one’s past imprudent decisions are a necessary condition for one’s present self. So unlike harm to others, harm to one’s future self doesn’t make people worse off than they otherwise would have been because otherwise they wouldn’t have been anyone or they would have been different people.
One may reply that one has a general duty to make one’s future as good as it can be, similar to duties of beneficence which we have toward others. But this reply raises the following dilemma. On one hand, if the reason that we have to be beneficent toward our future self is merely that we have reasons to make the world as impersonally good as it can be, then that consideration would not warrant a special concern for oneself or one’s future self and would seemingly call for very imprudent decision-making. For example, it would likely make the world impersonally better if any given person either worsened his future self by devoting all future earnings to the betterment of the worst off or ensured his (p.77) future self’s non-existence by donating his vital and non-vital organs to several people in need.
On the other hand, if the reason we have to be beneficent toward our future self stems from some other consideration, such as the idea that each person has a duty to ensure that her own life includes as many good experiences as possible, such a consideration would undermine the first premise of this argument that people have a right to die, at least in cases where the benefits of future life could plausibly outweigh the burdens.42
To review, I have argued that people have a right to die, and that the case in favor of a right to die supports a right to purchase and use deadly drugs without a physician’s authorization. And the right to purchase and use deadly drugs without authorization supports the more general right of self-medication, even for patients who use harmful or dangerous drugs, such as recreational drug use or drug use for non-medical purposes. In the next two sections I will provide a further defense of self-medication in these cases.
3.2 Recreational Drugs and Addiction
Drugs that are used to cause death are not the deadliest drugs. The drugs that kill the most people in America are tobacco products, alcohol, and prescription painkillers. The first two are legal, but painkillers are only available with a prescription. The recent escalation of painkiller deaths and addiction is extraordinarily costly and causes a great deal of suffering. In light of this rapid rise in use and addiction, an important objection to rights of self-medication is that unrestricted access to addictive and dangerous pharmaceuticals would increase use—just as alcohol and tobacco use is widespread in part because it is legal. If so, one might worry that self-medication would contribute to a public health crisis and exacerbate the challenges of treating the rapid rise of harmful opioid use. In 1970 the US Congress passed the Controlled Substances Act, which authorized the DEA to enforce prohibitions of non-medical prescription drug use partly for these reasons.
In this section I will respond to three forms of this objection. The first form of the objection states that limits on addictive recreational drugs are justified on soft paternalistic grounds, because addicts are not fully autonomous with respect to their drug of choice. In response, I present empirical evidence that suggests addicts are autonomous with respect to their drug of choice. I also (p.78) discuss ways that greater access to pharmaceuticals may, surprisingly, reduce rates of addiction and make opioid use safer for addicts.
The second form of the objection states that limits on addictive recreational drugs are justified on moral grounds, for example, because addicts are unable to participate as equals in a fair society or because people have duties to protect their autonomy. This objection relies on the same false empirical premise about the relationship between addiction and autonomy as the first form of the objection, and also misinterprets the moral value of autonomy in ways that would seemingly license excessive and illiberal interference with people’s choices.
The third form of the objection rejects the anti-paternalist framework entirely and states that limits on addictive recreational drugs are justified simply because unrestricted access to them would have terrible public health consequences. Again, I dispute the underlying empirical premise of this objection and argue that even if it were that access to addictive drugs had bad consequences on balance, it would not follow, even within a consequentialist framework, that prohibiting access is the best approach.
Consider first the claim that addicts are not fully autonomous with respect to their drug of choice so they do not have rights of self-medication when it comes to addictive painkiller use. This objection relies on an empirical claim about drug addicts. But empirical studies of drug addicts find that addicts are sufficiently autonomous with respect to the decision to use recreational drugs, even if they are not autonomous while they are intoxicated. For example, neuroscientist Carl Hart finds that among crack cocaine and methamphetamine users, only 10–20 percent become addicted and that those who do become addicted are still able to decide whether to use a drug.43 Multiple studies have confirmed Hart’s findings. When Hart offered addicts the choice of using their drug of choice or receiving cash rewards or merchandise vouchers, addicts’ choices were sensitive to incentives. The smaller the dose of a drug or the larger the cash reward, the less likely addicts were to choose to use the drugs. Sociological evidence also shows that addiction is sensitive to incentives.44 Most drug users are young adults, but people voluntarily quit as they grow older and assume more responsibility or financial commitments. When the price of drugs or penalties associated with drug possession increase, a portion of users quit.45
(p.79) Other studies of drug users find that even if intoxication or withdrawal symptoms impair drug user’s decision-making, regular drug users are rarely intoxicated or withdrawn.46 Most drug users can’t afford to be intoxicated all the time, but they can regularly take maintenance doses of drugs to avoid withdrawal. Even among heroin users who were identified as hard-core addicts, one study found that 43 percent worked full-time jobs.47 Addictive desires are neurochemically similar to the desire for food or sex.48 This evidence contradicts the popular perception that drug addicts cannot control their desire to use drugs.
When addicts claim that they cannot control their desire to use drugs, their testimony may not accurately reflect their underlying experiences because the decision to use recreational drugs is stigmatized.49 And it is true that the desire to use drugs is difficult for addicts to resist, especially when they judge that abstaining from drug use is a worse option. Hart argues that many addicts who use illegal street drugs act rationally in response to circumstances that offer them few other options for temporary pleasure. The same considerations apply to illegal pharmaceutical use. Referring to the recent increases in prescription painkiller use, one physician described opioid users as people with “terribly sad-life syndrome.”50 Another physician noted that opioid abuse is most prominent in poor, rural regions where patients suffer from physical disabilities and depression or anxiety. The problem is compounded because, often in these areas, people are stigmatized for seeking mental health treatment.51
On the other hand, many people who are addicted to drugs claim that they would prefer to stop using, and one may worry that rights of self-medication would make drug rehabilitation more difficult. Again, this is an empirical concern, and two kinds of evidence are relevant to answering these worries. First, the effects of street drug decriminalization efforts in Portugal suggest that prohibitive approaches to drug abuse do not necessarily promote rehabilitation better than non-prohibitive approaches.52 When Portugal decriminalized all (p.80) recreational drugs in 2000, rates of abuse, overdose, and HIV infection fell, and greater numbers of users sought rehabilitation and treatment.53
Public health experts generally support Portugal’s approach, which devotes resources to risk reduction and rehabilitation instead of punishment and prohibition. In 2014 the World Health Organization expressed support for the decriminalization of recreational drugs as part of a comprehensive approach to reducing rates of HIV infection.54 The 1988 UN convention against illicit traffic in narcotics and psychotropics allows for non-prohibitive approaches to recreational drugs too, and in 2009 the UN Office of Drugs and Crime issued a discussion paper supporting the treatment and rehabilitation approach to drugs followed by a 2014 statement that favorably discussed decriminalization and the Portuguese approach.55
Second, some of the most effective interventions for treating addiction include other pharmaceuticals. Bupropion is an anti-depressant that is an especially effective treatment for nicotine, cocaine, methamphetamine, and even gambling addictions.56 Other addiction-cessation therapies, such as methadone and narcotic antagonists like naltrexone and acamprosate, can also help people who wish to avoid further drug use. I am not suggesting that greater access (p.81) to pharmaceuticals would make rehabilitation easier, only that the evidence is mixed at best. Although greater access to pharmaceuticals would mean that some people had greater access to addictive drugs, they would also have more access to drugs that effectively treat addiction and underlying conditions that lead to addiction.
Another way to mitigate the potential harm of addictive pharmaceuticals would be to designate some addictive drugs as behind the counter and enable addicts who do not wish to use addictive pharmaceuticals to commit to not using by enrolling in a voluntary prohibition registry. Casinos have used this strategy to help gambling addicts without withholding access to casinos from customers who endorse their desire to gamble.57 Such an approach would make all the gatekeeping functions of the prescription drug system available to patients who would prefer not to have legal and easy access to opioids, while allowing other voluntary drug users to purchase and use recreational drugs, a right that is protected by the more general right of self-medication
If soft paternalism cannot justify limits on the sale of addictive painkillers, others have argued that restrictions on access to dangerous and addictive drugs are justified for moral reasons. For example, Samuel Freeman defends paternalistic bans on recreational street drugs that reliably and significantly undermine the moral and rational integrity of users.58 His argument is that public officials in liberal societies have a moral obligation to secure and protect each citizen’s ability to participate as an equal in those communities. His argument is similar to Velleman’s argument against the right to die.59 Freeman claims that liberalism begins with the assumption that autonomy is valuable, so if a public official aims to prevent people from undermining their autonomy by using self-destructive drugs, there is nothing illiberal about doing so.60 This argument rests on an empirical assumption that some drugs are so damaging that they would render users unable to participate in society. I argued earlier that there is reason to doubt this assumption. As I suggested in the previous section, Freeman’s argument that people are not entitled to render themselves unable to participate in society would also seemingly imply that patients do not have the right to die or to refuse lifesaving medical treatment. Therefore, if Freeman interprets the liberal value of autonomy as a capacity that public officials ought to protect, rather than respect, then he is seemingly committed not only to some prohibitions of recreational drug use but a host of other illiberal policies too.
(p.82) A related objection to permitting people to purchase addictive pharmaceuticals for non-medical use is that drug addicts are more likely than others to do immoral things while intoxicated, such as driving recklessly, committing assault, or neglecting their families. Yet these concerns do not support prohibitions of recreational drug use because it is not in itself wrong to use drugs. As Doug Husak has argued, the law should prohibit immoral conduct, such as driving while intoxicated or child neglect, not permissible conduct such as drug use.61 Husak’s argument that laws should only punish immoral conduct is especially applicable to prohibitive drug policies because the drug war in the United States is one of the greatest policy disasters of the last century, and it would be a grave mistake to continue on this misguided and destructive path. Prohibitive policies can also cause more crime because they bolster black markets, where people depend on private enforcement because they cannot rely on police to enforce property rights in illegal substances.
A final objection to a policy that grants access to addictive painkillers for non-medical purposes is consequentialist. It states that even if the prescription drug system considered as a whole does not promote public health and well-being, prescription requirements for painkillers would promote overall well-being. A consequentialist argument for banning access to addictive pharmaceuticals that are used for recreation might parallel recent arguments for cigarette prohibition. For example, Sarah Conly argues that cigarettes should be banned because the benefits outweigh the costs, especially because if cigarettes were illegal fewer people would be addicted, so fewer people would experience a ban as burdensome.62 Robert Goodin favors a ban on the grounds that smokers are not reliable judges of their own well-being when it comes to cigarettes because they suffer many cognitive biases such as shortsightedness and an overly optimistic view of their own future as smokers.63 Kalle Grill and Kristin Voigt argue in favor of a ban on the grounds that the loss of well-being caused by premature death and poor health outweigh the loss of well-being caused by limits on people’s choices and lack of access to cigarettes.64
These arguments may also justify prescription drug requirements that prevent people from using dangerous and addictive drugs for recreation. Conly supports prescription requirements, and her argument that prohibition can decrease rates of addiction, thus mitigating the loss of well-being associated with a ban can be extended to addictive pharmaceuticals. Similarly, recreational (p.83) pharmaceutical users potentially suffer from the same cognitive biases that Goodin attributes to smokers. And though not on the scale of tobacco use, recreational pharmaceutical use also causes poor health and early death, which substantially reduces well-being.
However, as in the case of tobacco bans, these considerations also cannot justify prohibiting recreational pharmaceutical use. We can address these proposals from the perspective of ideal theory or non-ideal theory.65 When we assess a proposal from the perspective of ideal theory, we ask whether it can be justified in light of all relevant moral considerations, but not whether it would be justified in the world as it exists today. When we assess a proposal from the perspective of non-ideal theory, we ask whether the proposal can be justified in light of moral considerations and empirical concerns about the feasibility of the proposal and whether people will generally comply with it. Grill and Voigt and Goodin make their case mainly at the level of ideal theory, whereas Conly makes the case for bans at the level of non-ideal theory.66
Within a non-ideal framework, it is clear that while the current restrictions on access to prescription pharmaceuticals are politically feasible, people do not comply with them. Due to the problems associated with compliance, Conly expresses reservations about extending her support for cigarette bans to other drugs on the grounds that “[Alcohol] prohibition seems to have been a consummate waste of money whose only achievement was making criminals rich … countless people have been killed in drug violence. These are policies that don’t work.”67 Painkiller prohibitions are also associated with drug-related violence, such as pharmacy robberies.68 Since prohibitive painkiller regulations increase the price of black market opioids painkillers, many addicts switch to heroin, which is more dangerous and poses additional public health risks, such as HIV transmission.69 And black market drug use is associated with incarceration, especially in vulnerable populations, which is harmful to dealers and users, but marginalized communities too.70 Since the non-ideal approach considers the (p.84) costs of non-compliance, these considerations undermine the non-ideal theoretical case for the prohibition of recreational pharmaceuticals.
Another reason that recreational pharmaceutical restrictions may cause more harm than good, even if people comply with them and they are effectively enforced, is that effective enforcement could have negative public health effects. For example, when public officials increase monitoring and enforcement of prescription painkillers, they subject physicians to heightened scrutiny of prescribing practices. Physicians who are suspected of prescribing painkillers to recreational users can face criminal penalties for running “pill mills,” so they are reluctant to prescribe painkillers. These policies therefore make it more difficult for patients to access painkillers for medical purposes as well.71
Additionally, Conly argues that the case for tobacco regulation is especially strong because tobacco is not immediately pleasurable to use, unlike heroin. Conly suggests that the initial unpleasantness of smoking means that tobacco regulations may be more effective at preventing people from becoming addicted in the first place than other regulations. Yet many of the prescription painkillers used recreationally are opioids, which are pleasurable when people use them for the first time. So, recreational pharmaceuticals are more like heroin than tobacco. Therefore, even if Conly’s non-ideal argument for tobacco regulation were successful, the argument would clearly not justify the prohibition of recreational painkillers.
Turning to ideal theory, the prohibition of recreational pharmaceuticals is not justified even in principle. If we assume that reform is politically feasible and that people would comply with laws prohibiting recreational use, there are many other potential policies that could also reduce recreational pharmaceutical abuse and misuse without prohibiting it. And since these policies would also not violate people’s rights of self-medication, they would have a principled advantage over coercive regulations. For example, instead of prohibiting people from using pharmaceuticals for recreational purposes, public officials could invest in addiction-cessation programs and effective drug rehabilitation and treatment, as well as facilitating access to drugs like naltrexone.
Officials could also provide incentives or subsidies for the development of non-addictive drugs that treat chronic pain. In some cases, expanded rights to use drugs could cause less harmful drug use. For example, some researchers suggest that medical marijuana could treat some of the conditions that are currently treated with opioid painkillers, which could potentially reduce the rates (p.85) of accidental poisonings because marijuana is much safer and less addictive than opioids.72 Non-medical factors seem to increase rates of recreational drug misuse and addiction too. For example, people who are unemployed and socioeconomically disadvantaged are more likely to be dependent on opioid painkillers. If material depravation contributes to self-destructive and addictive behavior and officials hope to prevent harmful drug use, then they should also consider interventions that address poverty, such as a universal basic income or other efforts at promoting social equality.
3.3 Therapeutics
Arguments in favor of paternalistic limits on other forms of pharmaceutical use will fail for many of the same reasons that arguments in favor of restrictions on the right to die or the right to use addictive drugs failed. Yet self-medication for therapeutic purposes may seem importantly different from deadly and addictive drug use because most people who do not use pharmaceuticals for recreation or suicide use them to improve their health. From this observation, one may then argue that therapeutic drug use is different because it is not an end in itself, only a means to an end, health. And it also may seem that paternalistic restrictions on the means to one’s ends are easier to justify, because interference with the means to one’s ends does not disrespect a person’s authority to set goals and pursue them or force her to live in accordance with a controversial theory of the good life that she does not accept.73
If there were a moral distinction between choices that are means to an end and one’s choices of ends, then that distinction would be relevant to the previous arguments for rights of self-medication. The epistemic argument for self-medication relied on the claim that people are generally in the best position to judge what is good for them. But it could be that people are generally experts about whether certain projects and goals will promote well-being but not experts about how to achieve those projects. If so, a patient may be in the best position to judge her tolerance for side effects and the value of health while a physician is in the best position to judge which drugs will minimize side effects and promote her health. Even if we grant this point and accept that people may require more information about the means to achieve their ends than they require about their ends, a certification system for pharmaceuticals could address concerns about (p.86) people’s qualifications to assess whether a particular drug will ultimately promote their goals, especially if people can consult with physicians as well.
But we should resist attempts to establish a more principled distinction between ends and means. If we accept that people are usually in the best position to judge whether they should pursue a particular goal or project, the same considerations would also support the assumption that people are usually in the best position to choose the means to achieve their goals or projects. Or, one could deny that people are usually in the best position to decide how to achieve their goals. But the denial of this claim invites skepticism against the claim that people are usually in the best position to set their own goals in the first place. And to deny this claim would have a high intuitive price, since it would seemingly justify a paternalistic interference with people’s most deeply held projects, including violations of informed consent.
Moreover, the distinction between ends and means is further undermined by the fact that judgments about safety and efficacy are normative judgments about how much risk a person accepts in her life. In this way, choices about therapeutic drugs are not solely instrumental to promoting a person’s health. Just as a person may reasonably take up the project of risky recreational drug use, she may also take up the project of risk-minimization by choosing to use safe drugs that cause more discomfort than their riskier alternatives. When making a decision about using a drug as a means to some other goal or as an end in itself then, people often have good reason to expect that other people defer to their judgment while also seeking out information about their choice to ensure that their judgment about whether to use a drug truly reflects their values. A system of certification would enable people who value different ends, for example,. health or recreation, and different considerations related to the means to their ends, for example, risk or cost, to make informed choices that reflected each person’s distinctive values.
For these reasons I am skeptical that there is a principled distinction between paternalistic limits on means and paternalistic limits on people’s ends. But there may be other reasons to think that unrestricted access to therapeutics is even more problematic than unrestricted access to deadly drugs or addictive recreational drugs. Specifically, when people are sick, they may be particularly bad at assessing risks, ignorant, and extremely vulnerable. These considerations could undermine people’s decisional capacity in ways that are especially worrisome. And while public officials have their own biases and are ignorant about each patient’s overall interests, they are not as emotionally compromised as patients who encounter an illness for the first time.
On the other hand, a patient’s emotional state may also be an asset in overcoming biases and ignorance, since each patient is more motivated to make a qualified decision about her health more than anyone else in her life. Just as insurance salespeople and real estate investors are better at assessing risks than (p.87)ordinary consumers because they stand to gain more from accurate assessments and lose more from inaccurate judgments, patients bear the costs of their judgments more than anyone else. And if a patient recognizes her own biases and ignorance, she may choose to consult with experts. And while people who face life-threatening illnesses are especially vulnerable and potentially susceptible to manipulation, public officials should address these concerns by protecting patients from fraudulent marketing, certifying drugs, and perhaps subsidizing access to physicians for people who would otherwise lack access to expert advice.
A related concern is that some patients are not only poorly equipped to understand the risks and benefits of treatment, but they also are poorly equipped to recognize that they are poorly equipped to understand their treatment choices. The Dunning-Kruger effect is a cognitive bias in which those who are least qualified to make a judgment mistakenly judge themselves as qualified.74 The Dunning-Kruger effect is particularly troubling in healthcare contexts because people are unrealistically optimistic when they assess their own health risks relative to other people and confidently misdiagnose themselves on the basis of false beliefs about medicine.75
These biases are most prominent in circumstances of pervasive ignorance, when patients know so little about health and medicine that they don’t know what they don’t know. But we should not assume that the pervasiveness of the Dunning-Kruger effect is a fact of nature, rather than a fact of our environment and the current system. One reason that patients may be so pervasively ignorant about health is that they have had little reason to investigate their treatment options or to learn how to evaluate different drugs. Under the current system of pharmaceutical regulation, patients may not attempt to educate themselves or to investigate their options out of a sense of learned helplessness. In healthcare settings, learned helplessness can be caused by social factors, policies, and stereotypes that undermine patients’ sense of responsibility, control, and independence.76 Prohibitive pharmaceutical policies are policies that reinforce the stereotype that patients are helpless. Existing policies could also lead some patients to quite reasonably conclude that attempts to control their course of treatment are likely to be futile, and patients may therefore refrain from investing resources in educating themselves. But if officials and physicians respected patients’ rights of self-medication, then patients may invest more resources in (p.88) learning about drugs and health, thereby overcoming the pervasive ignorance about health that causes oblivious and biased decision-making today.
3.4 Antibiotics
If people’s rights of self-medication support rights to use deadly drugs and addictive painkillers, then it may seem that patients have rights to unrestricted access to all and any pharmaceuticals. Yet the arguments on behalf of the right to die and rights to use painkillers and other pharmaceuticals relied on the assumption that deadly drug use and painkiller addiction and self-medication did not violate other people’s rights. Few pharmaceutical choices do violate rights, but if using a drug does injure other people, physicians and regulators should enforce prescription requirements that limit access.
For example, restrictions on antibiotics are warranted if antibiotic misuse contributes to the development of dangerous antibiotic-resistant bacteria and restrictions can effectively prevent harmful antibiotic misuse. The argument in favor of prescription requirements for antibiotics goes like this:
(P1) If a user violates other people’s rights or exposes others to an undue risk of harm by using a drug, then public officials may permissibly limit access to that drug.(P2) Antibiotic users violate other people’s rights against contagious transmission and expose people to an undue risk of harm.(C) Therefore, public officials may permissibly limit access to antibiotics.
This argument is consistent with the claim that patients’ rights of self-medication are analogous rights of informed consent. Neither rights of self-medication nor informed consent are absolute because neither right entitles people to make decisions that violate or significantly risk violating the rights of other people. Just as the right to freedom of movement doesn’t entitle a person to ride her bicycle into a crowd, nor do medical rights mean that people are entitled to subject people around them to the risks of being injured by illness.
For example, the doctrine of informed consent does not protect a patients’ right to refuse to be vaccinated or to refuse to undergo treatment or quarantine for a contagious disease. As I have argued elsewhere, vaccine refusal decisions can violate others’ rights in the same way that drunk drivers violate people’s rights by exposing them to an undue risk of harm.77 Bystanders in public spaces (p.89) have rights against having their lives endangered by contagious but preventable diseases because they cannot consent to the risks accompanied with associating with an unvaccinated person. If unvaccinated people refrained from using public spaces and those who associated with them were capable of consent, informed of the risks of contagious transmission, and consented to associate with unvaccinated people anyhow, it would not be wrong to refuse vaccination. Yet the risk of non-consensual transmission is morally significant enough to justify compulsory vaccination in most contexts because unvaccinated people use public spaces and put other people at risk.
Similarly, rights of self-medication also are not absolute. Antibiotic overuse is also harmful to innocent bystanders because it increases the severity of some outbreaks of infectious diseases and the probability that antibiotic-resistant bacteria, also known as superbugs, will develop. Antibiotic overuse causes resistance because when people use antibiotics to treat an illness, the antibiotics kill the bacteria causing their illness as well as bacteria protecting their bodies from infection. After treatment, only antibiotic-resistant bacteria remain in the body, so the drug-resistant bacteria multiply. For this reason, exposure to antibiotics increases the amount of antibiotic-resistant bacteria and raises the probability that antibiotic-resistant infections will develop.
As in the case of vaccines, rights of self-medication can reasonably be limited to mitigate the harm that antibiotic-resistant bacteria could cause if transmitted, since contagious transmission would violate other people’s bodily rights. The epistemic case for self-medication fails to support a right to access antibiotics too. While it is reasonable to assume that patients usually know whether using a drug, including an antibiotic drug, is good for them, their expertise about the personal benefits of using antibiotics does not entitle them to put others at risk. So when it is clear that limiting access (or requiring vaccination) is necessary to avoid contagious transmission and that it would be effective, public health officials would have the authority to limit access to antibiotics.
Researchers have already documented antibiotic-resistant forms of tuberculosis, syphilis, strep, staph, salmonella, and E. coli. Many antibiotic-resistant infections develop in hospitals, where antibiotics are routinely prescribed. Some experts suggest that hospital-based overuse (along with agricultural antibiotic use) is a primary contributor to antibiotic resistance.78 Using high doses of antibiotics in hospital settings can increase the probability of bacterial Clostridium difficile (C. diff) infections, which develop when people in hospitals use high doses of antibiotics for a prolonged period, killing the gut bacteria that usually (p.90) prevents C. diff infections. In the United States, C. diff sickens more than half a million people each year, and it contributes to tens of thousands of deaths.79
If antibiotics were as widely available in consumer markets as they are in hospitals, resistance would be even more likely. In places where pharmaceutical regulations are not enforced and patients can freely access antibiotics, resistance is a greater threat to public health.80 Therefore, patients’ rights of self-medication do not entitle them to purchase and use antibiotics without authorization.
One may reject my analogy between compulsory vaccination and access to antibiotics on the grounds that people who transmit contagious illnesses violate the bodily rights of their victims but people who contribute to antibiotic resistance by using antibiotics do not violate anyone’s bodily rights. After all, if a person is infected with measles, it is because she inhaled the virus from someone with measles who spoke or coughed nearby. So, people have a duty to get vaccinated in order to avoid spreading viruses like measles to others. But if a person is infected with antibiotic-resistant syphilis, it is because she touched the active lesions of a sexual partner who was infected with syphilis. It may seem that the person who acted wrongly in such a scenario is her partner, not those who used antibiotics in the past. Likewise, if a person is infected with C. diff, it is because either they touched a surface contaminated with feces and then touched their mouth or a health worker did. It seems that the duty that follows from this wrong is a duty to avoid contaminating surfaces with feces and a duty for health workers to wash their hands thoroughly.
However, compulsory vaccination policies do not prohibit contagious transmission either, such policies prohibit people from creating the conditions where contagious transmission of harmful illnesses is more likely. So too, when people misuse antibiotics, they create the conditions for antibiotic-resistant bacteria to thrive, and therefore subject others to risks of contagious infection. Sick people who use public spaces when they are contagious or health workers who fail to wash their hands may be culpable for contagious transmission, but those who create the conditions for infection to spread are culpable as well because they put people at undue risk of harm.
Prescription requirements for antibiotics and compulsory vaccination are therefore justified policies because public officials may permissibly limit some people’s medical autonomy for the sake of public safety and the medical autonomy of third parties. Even though not every unvaccinated person or antibiotics (p.91) misuser harms others by creating the conditions for contagious transmission of a harmful and potentially treatment-resistant illness, they do put others at an undue and avoidable risk of being harmed.
Some philosophers endorse even stronger limits on antibiotics than the current prescription system, citing concerns about antibiotic resistance. Jonathan Anomaly argues for a global antibiotics treaty, modeled on the Kyoto protocol, to curb antibiotic overuse.81 If such a treaty could work, I am also open to the idea that patients, physicians, and public officials should not be permitted to determine the distribution of antibiotics in light of the significant possibility that antibiotic use endangers others. Elsewhere, Anomaly proposes other means to prevent antibiotic resistance, such as bans and taxes on agricultural antibiotic use and funding for antibiotic research, in addition to prescription requirements.82 This is a case where pharmaceutical regulations pass the regulatory reversal test, and we should infer from the fact that regulations to date have had good effects that further regulations to prevent antibiotic misuse could be justified.
3.5 The Case for OTC Enhancements
Except for antibiotics, the foregoing arguments against prescription requirements call for greater access to most other drugs. Yet some people argue that the same considerations in favor of limiting access to antibiotics can also justify limiting access to drugs that enhance users’ capacities. The argument is the same as the argument against antibiotics, except that the second premise is that users of enhancement drugs violate other people’s rights to equal opportunity or fair competitive conditions, therefore, public officials may permissibly limit over the counter (OTC) access to enhancements.
One might apply this argument in favor of restrictions on access to steroids for athletic enhancement, stimulants as a form of neuroenhancement, or any other drugs that give users a positional advantage over others but do not treat a disease or disability. For example, Norman Daniels argues that healthcare systems should focus on providing all citizens with equal opportunities for advantage. Diseases and disabilities disadvantage some people, so a just society should provide treatment for people who are sick and disabled for the sake of equality of opportunity. In contrast, enhancements can advantage some people who are not disadvantaged, and may therefore be restricted for the sake of (p.92) equality of opportunity. Similarly, Ori Lev argues that stimulants for the purpose of neuroenhancement should only be available to people who suffer from disadvantages, not to further the opportunities of already advantaged groups.83
Unlike antibiotic use however, even if one person’s pharmaceutical enhancement makes another person worse off, it would not violate her rights. Arguments against enhancement rely on two assumptions. First, arguments against enhancement rely on the assumption that enhancements give people advantages in the distribution of goods that are mainly positional, and that these positional advantages cannot be justified by the non-positional advantages they also bring. Second, arguments against enhancement assume that people have enforceable entitlements against being made worse off in the distribution of positional goods in the first place.
Both of these assumptions are unfounded. People may legitimately choose enhancements even if they bring no positional advantages because there are other benefits to being enhanced. And in any case, people do not have rights against being made worse off in the distribution of advantages, and even if they did, these rights would not be enforceable. Therefore, restrictions on access to pharmaceutical enhancement cannot be justified on the grounds that people will use enhancements to gain unfair advantages over other people. Moreover, limits on access to enhancement not only violate people’s rights of self-medication; pharmaceutical enhancement quotas and bans can also contribute to inequality and prevent patients from accessing treatment.
First consider the claim that access to pharmaceutical enhancements would give people advantages in the distribution of goods that are mainly positional. This claim mirrors Adam Swift’s arguments in favor of prohibiting parents from sending their children to private schools on the grounds that education is mainly a positional good and that children who attend private schools will gain unfair advantages over public school students.84 One might argue that people should not be permitted to access drugs that cognitively enhance their users for the same reason. I am skeptical that Swift’s arguments justify abolishing private schools, but even if we grant this claim for the sake of argument, it would not justify restricting access to pharmaceutical enhancements. For one thing, though I have defended pediatric neuroenhancement elsewhere, my argument is focused on adult’s enhancement.85
Even if it were permissible to restrict children’s freedom to access cognitive enhancements, such as private schools or pharmaceutical neuroenhancements, (p.93) restrictions on access to private education or pharmaceuticals for adults are more difficult to justify. Additionally, this argument assumes that enhancements are used mainly to gain advantages over others. But there are many reasons that people may use pharmaceutical enhancements even if they do not give them an advantage over others. Imagine, for example, a mother who works in the home raising children, who feels that access to a cognitive enhancement like Adderall would help her manage her household. Since she is not participating in the labor market, one cannot justify restrictions on her access to pharmaceutical enhancements on the grounds that she would use them to gain advantages over others. Or imagine a person who uses athletic enhancements so he can participate in recreational sports, such as rock climbing and mountain biking. People may legitimately desire to use pharmaceutical enhancements for many reasons that have nothing to do with gaining positional advantages.
In some cases, a person may use enhancements to gain a positional advantage but also for non-positional benefits. These cases may be analogous to parents’ practice of reading to their children in order to bond with their children and also to give them educational advantages. In these cases, non-positional benefits of parental closeness can justify contributing to educational inequality. Access to private education may also be justified if it raised the absolute level of educational achievement, even if it also caused greater educational disparity. If the absolute gains in achievement are significant enough, these gains may justify increasing disparity. Similarly, if a person uses pharmaceutical enhancements both because of the intrinsic benefits of better cognition or increased strength and endurance and also for a positional advantage, the non-positional benefits can justify greater inequality, especially if access to pharmaceutical enhancements also improved cognitive and physical abilities within a population overall.
In other cases, a person may use enhancements to gain non-positional benefits that are morally significant, and her use of enhancements could reduce inequalities or the harmful effects of inequality. For example, if more people used cognitive and moral enhancements, then enhancement use could have broad social benefits, including benefits for the worst-off members of society and for people who do not use enhancements.86 If people used enhancements in ways that increased productivity or peace, for example, then people who do not use enhancements would benefit from others’ enhancement use in the same way that societies have benefited from gains in productivity and peace to date.
Even if a person uses pharmaceutical enhancement solely to gain advantages over others, arguments for limiting access to pharmaceutical enhancement (p.94) on these grounds assume that the interests of those who are disadvantaged by other’s enhancement use can justify limits on people’s rights of self-medication. But even if states ought to promote social and economic equality, public officials are constrained by citizens’ rights. For example, few would accept Cecile Fabre’s proposal to redistribute people’s non-vital organs from the healthy to the unhealthy, even if such a policy would reduce health inequalities, because such a policy would violate rights of informed consent and bodily rights more generally.87 For the same reason, public officials should not violate rights of self-medication, which are supported by the same normative considerations as informed consent, in order to reduce social, economic, or health inequalities.
Let’s grant again for the sake of argument that people have entitlements not to be disadvantaged by other people’s enhancement. For such entitlements to justify limits on access to pharmaceutical enhancement, one must show that these entitlements against being disadvantaged are enforceable. Yet, even if access to enhancements could permissibly be limited for the sake of equality, a claim Swift develops in defending the abolition of private schools, it would not justify limiting access to enhancements if public officials could promote social and economic equality in other ways. For example, say the concern is that people would gain economic advantages by using pharmaceutical enhancements. In response, states could either restrict access to pharmaceutical enhancements though a prescription system or allow unrestricted access to pharmaceutical enhancements. The prescription approach would be coercive, it would violate rights of self-medication, and it may not even work if rich and well-connected people were able to navigate the prescription system better than disadvantaged people. The unrestricted access approach would allow people to purchase enhancements to gain advantages over others, but if public officials are concerned that such a system would exacerbate socioeconomic inequality, they may consider subsidizing access to pharmaceutical enhancements for disadvantaged populations instead of implementing a coercive prescription system.
We should also question the assumption that people have entitlements not to be disadvantaged by other people’s decision to use pharmaceutical enhancements. Runners who train at high altitudes or spend more time training have greater endurance, but they do not violate the rights of runners who live at low altitudes and have limited time. One may reply that inequality is more troubling when enhancements disadvantage people in more significant ways, such as when people are socially or economically disadvantaged because they could not or would not use enhancements. But people are permitted to enhance themselves in many other ways that translate to social and economic advantages (p.95) (e.g., reading the newspaper, wearing makeup, saving money, showing up to work early), so why would pharmaceutical enhancements be especially objectionable? One may also reply to the egalitarian assumption behind arguments against enhancement that inequality per se is not objectionable anyhow. Rather, public officials should aim to ensure that people have enough social and economic resources to live a good life, rather than coercing people to better approximate the ideal of social and economic equality.
For these reasons, public officials should not restrict access to pharmaceutical enhancements for the sake of equality, especially if they can address objectionable inequalities without prohibiting people who could benefit from enhancements from accessing them. If anything, policies that limit access to pharmaceutical enhancements may contribute to inequality because, under the current prescription system, only patients who have enough resources to find a physician who will prescribe enhancements are permitted to use them, while those with fewer resources to access prescriptions are excluded from the potential benefits of enhancement even if they may stand to benefit from enhancements the most.88 In these ways, policies that limit access to pharmaceutical enhancements may further harm the very disadvantaged they aim to benefit.
Some critics of pharmaceutical enhancement use object that permitting enhancement would contribute to an objectionable escalation of competition between students and coworkers.89 If stimulant use were normalized, people might feel pressured to use stimulants just to keep up. Michael Sandel raises a version of this objection against athletic enhancements, such as steroids, in competitive sports.90 Bioethicists are also concerned that motivation enhancements could make workers more complacent in lives or jobs that lack meaning, whereas an untreated lack of motivation may encourage the pursuit of more meaningful work.91 Others worry that enhancement would threaten the value of authentic human achievement. Here the aforementioned response to concerns about inequality is relevant once again. Even if meaningful work and authenticity were genuinely valuable, to justify restrictions on access to prescription enhancement, one would need to show that meaning and authenticity are more valuable than bodily autonomy and rights of self-medication. We would not accept a policy that violated people’s rights of informed consent so that they could have (p.96) more authentic experiences or laws that banned coffeemakers in offices so that people would feel demotivated and pursue more meaningful work. Nor should we accept limits on self-medication for the sake of these values.
I suspect that much of the resistance to enhancement is not motivated by concerns about equality or meaning but by disapproval of seemingly illegitimate ways of succeeding. Some people perceive pharmaceutical enhancement as a kind of cheating, though they accept other ways of gaining positional advantages. Those who accept limits on access to enhancements for these reasons must then either accept similar limits on dietary, occupational, recreational, and relationship choices that give some people advantages over others or explain why pharmaceutical choices are relevantly different from these other choices such that only pharmaceutical means of gaining advantages should be prohibited.
Policies that limit access to pharmaceutical enhancement can also harm people who are already disadvantaged because of learning disabilities or people with recognized medical reasons to use drugs that can also be used as enhancements. In the United States, for example, the DEA imposes quotas on manufacturers that limit the supply of stimulants that have the potential for abuse. For example, in 2011 a shortage of stimulants was attributed to manufacturing quotas that prevented drug makers from producing enough ADHD drugs to meet the growing demand.92 These avoidable shortages left those who used the drugs feeling powerless, judged, and stigmatized as they searched for a pharmacy that could fill their prescriptions. One patient described the experience as follows:
For each new prescription … I must muster up energy to begin the hunt. Maybe I’ll get lucky and my order can be filled on the first try. But most often, it’s the start of a very difficult search that can take weeks, and burns precious resources.93
In response, the DEA argued that the quotas were appropriate and that any drug shortages were attributable to manufacturers over-manufacturing a greater proportion of expensive versions of drugs, causing an under-supply of generics.94 Even if this charge is true, quotas ultimately caused the shortages insofar as both versions of drugs would have been produced in the absence of a quota.
Prescription requirements could also stand in the way of normalizing enhancement use, which could contribute to the stigmatization of people who use (p.97) enhancements to treat disabilities and impairments. Nadria Faulmüller, Hannah Maslen and Filippo Santoni de Sio argue that enhancement use is currently stigmatized and that people who use enhancements are seen as intellectual inferiors or cheaters.95 But as Faulmüller et al. point out, caffeine was stigmatized and prohibited in Sweden in the eighteenth century, and today, Swedes drink more coffee than most. One way to mitigate the indirect psychological costs of using a drug is to allow it; so the fact that using a drug is stigmatized should not be cited as a consideration in favor of restrictions on access.
In sum, while public officials can legitimately limit access to antibiotics to prevent people from harming others, the same strategy cannot justify limits on pharmaceutical enhancement. Though unregulated use of pharmaceutical enhancements may put some people at a disadvantage, these disadvantages cannot justify prohibitive pharmaceutical policies. Furthermore, prohibitive limits on access to enhancements would not only violate rights of self-medication, such policies may also make people worse off on balance and contribute to social and economic inequality.
3.6 Rethinking Non-Medical Use
I argued earlier that a person’s medical needs should not dictate whether she has access to drugs. Instead, people have rights to access drugs, which may also promote their overall well-being. Yet, as the examples of deadly drugs, recreational drugs, and enhancements illustrate, prescription drug requirements limit patient’s access to pharmaceuticals on the basis of whether a medical professional judges that a person has a legitimate medical need. This practice rules out prescribing pharmaceuticals that can and do improve people’s lives in ways that do not address medical needs. Because the prescription drug system forecloses non-medical pharmaceutical uses, prescription requirements not only violate rights of self-medication, they also contribute to the medicalization of normal functioning and potentially deter pharmaceutical innovation.
The first effect of restricting access to medical use is that it encourages patient advocates and pharmaceutical manufacturers to push for the re-classification of seemingly non-medical conditions as medical conditions. There’s no intrinsic reason to define concepts of disease and health to include some conditions but not others. Some philosophers argue that concepts like disease and disability are socially constructed. Others say that disease and disability are defined as any (p.98) condition that undermines a person’s well-being. Another popular definition defines disease and health in contrast to how a normal human would function. All of these definitions of disease, disability, and health tell us something important about what makes disease different from other conditions, but there’s no reason to think that each definition cannot be true in its own way. Sometimes people experience the conditions we think of as diseases or disabilities as bad for their welfare, but sometimes they don’t. Yet we would still want to characterize those conditions as disabilities. While disability rights advocates often emphasize that many parts of disability are socially constructed, some aspects of disease and disability are not, such as a shorter life-span. And those who define health in terms of normal species functioning capture the idea that it is often a disadvantage to experience impairments that others do not, but what we think of as normal changes as medical technology evolves, so things that were once considered normal may now be seen as diseases.
There are other ways that each model of disease and health fails to capture all of our intuitions about these concepts too, but for now, the important point is that calling a condition a disease or disability, whatever one means by those terms, marks it as different from other conditions in a way that may cause social stigma, loss of well-being, or designation as unnatural or abnormal. Maybe it isn’t justified that people with diseases and disabilities are classified this way, maybe this classification is a form of social prejudice against people whose bodies are different. On the other hand, designating a condition as a disease, disorder, or disability can also be useful—insurance providers may use these categories to decide which services and drugs to provide, and they may be used to protect people from discrimination.
Since concepts of disease and health play a role in determining how people are perceived, how they perceive themselves, and whether they receive insurance benefits and legal protection, redefining these concepts is normatively fraught. Yet pharmaceutical companies have incentives to classify a range of conditions as diseases, disorders, and disabilities so that they can market drugs for those conditions. If a condition can be improved with access to drugs, pharmaceutical developers and medical professionals have incentives to try to characterize it as a medical disorder so that they can legally treat it. Ray Moynihan, Iona Heath, and David Henry call this phenomenon “disease mongering.”96 Moynihan et al. argue that disease mongering occurs in five cases.97 First, ordinary experiences are classified as medical conditions. Second, the risks associated with mild symptoms are overemphasized. Third, “personal or social problems [are] seen as medical ones.”98 (p.99) Fourth, risks are characterized as diseases. And fifth, the prevalence of diseases is exaggerated. Moynihan et al. object to disease mongering on the grounds that it increases healthcare costs and puts patients at risk of iatrogenic effects of using drugs. If patients bear the costs of treatment and consent to the risks, then these complaints seem akin to the complaints that motorcycles increase healthcare costs and put riders at risk. Nevertheless, Moynihan et al. do raise a morally important concern about medicalization because there are other reasons to be wary of disease mongering.
Another concern about medicalizing conditions so that pharmaceuticals that treat them may win approval is that sometimes conditions that are not and should not be considered medical problems may nevertheless merit pharmaceutical treatment, but that they should not be classified as diseases or disorders to justify treatment. This argument relates to a broader point about the appropriate reasons for calling a behavior a medical condition. A danger of characterizing a condition as a disease or disorder is that disease classification can be used to justify medical intervention when a person’s conduct is entirely reasonable, or it may characterize reasonable conduct as disordered. The practice of deeming normal behavior or functioning as disordered is especially concerning when vulnerable or marginalized groups are characterized in these ways. Such labels can contribute to existing patterns of stigma and empower people to dismiss groups’ legitimate concerns on the grounds that they are abnormal.99
Consider, for example, the classification of premenstrual dysphonic disorder (PMDD) as a psychiatric disorder. Many women experience mood changes related to menstruation, either because of hormonal shifts or because of the pain and inconvenience of menstruating. Some of them display the symptoms of a psychiatric disorder during menstruation, and others would greatly benefit from treatment for mood changes related to menstruation, even if they are still able to function. Yet in order for women who suffer from mood changes during menstruation to receive treatment, PMDD must currently be classified as a psychiatric disorder so that pharmaceutical companies can legally develop and market new drugs to treat psychiatric menstrual symptoms.100 Since it is (p.100) necessary to characterize PMDD as a psychiatric disorder for manufacturers to research and develop treatments for menstrual mood changes, the medicalization of menstrual mood changes is beneficial for women. But this is not to say calling menstrual mood change a disorder is morally uncomplicated, because there are also costs to characterizing menstrual mood changes in this way. For one thing, calling menstrual mood change a disorder suggests that normal ways of responding to normal bodily functions are inherently problematic.101 This characterization of PMDD de-normalizes having a female body and mind, which stigmatizes femininity and reinforces existing male normativity. In this way, classifying menstrual mood change as a disorder turns having a normal female body into a pathological condition.102
Similar considerations apply to other conditions. Because of existing approval and prescription requirements, for an ailment to be treated with pharmaceuticals, it must be classified as a disease. In theory, there is little reason to oppose expanding existing conceptions of disease and health to include a wider range of conditions. After all, concepts of disease and health are socially constructed concepts that can change as social norms evolve.103 But in practice, there are risks associated with classifying conditions as diseases. Consider the concept of aging. Though drugs may effectively treat many of the conditions associated with aging, thinking of those conditions as disorders or diseases may contribute to the social marginalization of elderly people and exacerbate discrimination and stigma. These considerations lend support to arguments in favor of reforming prescription drug systems and approval requirements so that patients may use pharmaceuticals to improve their well-being on balance, without requiring a medical diagnosis for access to pharmaceuticals.
There is some precedent for rethinking these standards. Oral contraceptives are not usually used to treat a medical diagnosis (though they were initially approved to treat endometriosis and other gynecological conditions). As in the case of oral contraceptives, manufacturers that develop drugs that can improve people’s overall well-being in other ways should not be required to characterize conditions as diseases, disabilities, and disorders. Another benefit of expanding our understanding of which circumstances merit pharmaceutical intervention to include non-medical conditions is that it may address some of the healthcare cost inflation that Moynihan et al. argued were caused by disease mongering. Insurance providers contract with patients to pay for (p.101) pharmaceuticals that treat medical conditions, but if pharmaceuticals were not generally required to treat medical conditions, then pharmaceuticals may be marketed without characterizing people as diseased or disordered. Expanding pharmaceutical use beyond the realm of healthcare could therefore reduce the costs of services that insurance companies and members of insurance pools are expected to provide.
A final hazard of limiting access to pharmaceuticals only to people with a medical diagnosis is that, in some cases, disease mongering may not succeed. If public officials took a wider view of legitimate pharmaceutical use, then researchers and manufacturers would have greater incentives to develop drugs that treated a wider range of conditions. We can imagine drugs that could improve well-being in a variety of ways that extend beyond the medical context, and some drugs are currently used off-label or illegally for these purposes. In addition to the aforementioned examples of recreational use and enhancement, drugs may also be used to prevent divorce, make people more moral and less violent, and improve people’s communication skills.104
Going forward, it will become increasingly important to adopt a more flexible understanding of the role that pharmaceuticals can play in people’s lives as medicine becomes more personalized and researchers gain a better understanding of the benefits of drugs beyond the treatment of widespread disease. In a world where patients were empowered to decide whether to use drugs based on their assessments of their values and overall well-being, who knows what may develop to improve people’s lives?
3.7 Public Health and Preventive Medication
Prescription requirements should not privilege medical reasons for pharmaceutical use over non-medical reasons. One may think that patients with medical reasons to use pharmaceuticals generally have more urgent claims to use them than people who would use pharmaceuticals for non-medical reasons. However, existing prescription requirements also prevent patients from accessing pharmaceuticals for medical purposes. So even those who disagree with my claim that non-medical pharmaceutical use ought to be permitted should still rethink the prescription requirements that stand in the way of self-medication that could improve people’s health.
(p.102) One way that prescription requirements stand in the way of self-medication for the purpose of health is that they make drugs more expensive for patients and insurers. To obtain a prescription, a patient must visit a physician first. The sale of prescription-grade drugs subsidizes the cost of employing pharmacists to monitor how the drugs are distributed. It is common in the United States for elderly patients who cannot afford US prescription drug prices to illegally purchase cholesterol and blood pressure medication from Canadian pharmacies. Underground pharmaceutical markets may be relatively more dangerous insofar as patients who make unauthorized pharmaceutical purchases do not have access to expert advice about dosages and interactions and are discouraged from seeking that advice because their choices are illegal. Patients are also subject to criminal sanctions for illegal pharmaceutical use, despite the fact that they are treating a medical condition.
Prescription requirements that prevent patients from purchasing and using relatively safe drugs that provide significant social goods or prevent significant harms also threaten the public’s health. The case against prescription requirements is strongest for drugs that protect third parties from medical risks. For example, drugs that prevent unwanted pregnancies, drug overdoses, or HIV transmission, more than other drugs, should not require a prescription. There are also especially strong reasons to allow patients to access relatively safe drugs that prevent death or debilitating diseases, such as asthma inhalers, insulin treatment, and statins.
Today, people can purchase condoms in convenience stores, vending machines, supermarkets, and even online, but oral contraceptives require a prescription in most places.105 Both forms of contraception have moderate risks. Condoms can trigger a latex allergy that in some cases can cause shortness of breath or hives, and they have a typical use failure rate of 18 percent. Oral contraceptives have risks as well. For some populations contraceptive pills are not recommended because they can increase a person’s risk of heart attacks and strokes, some pills can cause weight gain and mood changes, and they have a typical use failure rate of 9 percent.106 On the other hand, some contraceptive pills can lower the risk of ovarian cancer, pelvic inflammatory disease, uterine cancer, and endometriosis; cause shorter and lighter periods; alleviate acne; and increase bone density before menopause.
(p.103) The medical risks of condoms and pills, considered in light of failure rates and potential benefits, highlight an inconsistency in access to contraception. If condoms are safe enough to be sold over the counter to anyone, so are contraceptive pills. In addition, other over-the-counter pills, such as omeprazole, acetaminophen, and aspirin, are much riskier than contraceptive pills. In light of this evidence, public health scholars called for birth control to move over the counter as early as 1993, arguing,
Prescription status [for contraceptives] entails heavy costs, including the dollar, time, and psychological costs of visiting a physician to obtain a prescription, the financial and human costs of unintended pregnancies that result from the obstacle to access caused by medicalization of oral contraceptives, and administrative costs to the health care system … neither safety nor efficacy considerations justify prescription status for oral contraceptives. Revised package design and patient labeling could allow women to screen themselves for contraindications, to educate themselves about danger signs, and to use oral contraceptives safely and successfully.107
Unlike other drugs, oral contraception is not designed to treat patients with a specific medical diagnosis, so prescription requirements cannot be justified on the grounds that only patients with a medical need should use the drug. Contraception also has significant social and public health benefits because it prevents abortions and unintended pregnancies. Perhaps for this reason, emergency contraception is available over the counter in some countries. One objection to moving birth control over the counter is that women would not otherwise schedule yearly visits to a gynecologist, but yearly visits are no longer indicated for healthy women, and primary care physicians can still refer women to gynecologists as needed.
For similar reasons, pre-exposure prophylaxis (PrEP), which prevents transmission of HIV, should also be available over the counter. If people who do not have HIV but are at substantial risk take PrEP pills every day, they can prevent HIV infection. PrEP reduces the risk of transmission by up to 92 percent. The prevention of HIV is an important public health goal, and, like condoms, PrEP can be a valuable tool in reducing HIV transmission rates. Just as impediments to condom use set back the cause of HIV prevention, so too do prescription requirements for PrEP, which raise the price of obtaining and using the drug and may prevent consistent use of it, thereby making the prophylaxis less effective.
(p.104) Prescription requirements for PrEP are currently justified on the grounds that users should be re-tested for HIV every three months and receive counseling about HIV risk reduction and safe sex. Yet people do not need to see a physician to test for HIV every three months since in-home HIV tests are available. Patients may find the requirement that they regularly take time out of their schedules and pay to visit a physician to be informed about safe sex and risk reduction patronizing or stigmatizing. Instead, the packaging for PrEP could include information similar to what would be provided by a health worker without requiring a visit to the doctor. In this way prescription requirements for PrEP are not necessary to promote informed use, and they may ultimately deter patients from using a relatively safe drug that would have significant benefits to public health.
Many of the same arguments in favor of allowing patients to access PrEP over the counter also support moving other safe daily preventive medications over the counter. For example, statins are one of the most prescribed drugs. Statins treat high cholesterol and prevent heart attacks for at-risk patients. Some statins are available over the counter in Britain, and manufacturers are pushing for over-the-counter statins in the United States.108 Yet some physicians are critical of the proposal on the grounds that not all patients understand their cholesterol and some patients would not use the drugs effectively without a physician’s supervision. On the other hand, patients can test their cholesterol at a pharmacy instead of visiting a physician, and over-the-counter access would make the lifesaving drugs cheaper and more accessible to patients who do not have reliable access to a physician.
Over-the-counter access to other preventive medicines is justified on similar grounds. Many people with asthma take long-term control medicines on a daily basis, but prescription requirements make them more expensive, putting patients who cannot afford to renew their prescriptions at risk.109 Similarly, insulin is also among the most prescribed drugs, but prescription requirements prevent diabetic patients from getting the drugs they need.110 Like asthma, diabetes is a chronic and long-term condition, so diabetics are familiar with how to properly use insulin therapy and monitor their blood sugar. Yet despite their (p.105)relatively high level of medical knowledge, they can only access the drugs that keep them alive with a physician’s authorization. These policies may cost lives in cases where diabetics cannot access the medicine they need. For example, Kevin Houdeshell died when he was thirty-six-years old because he could not obtain a prescription for insulin soon enough. According to his sister, Amy:
He was young, fit, healthy. The pharmacy told him his script had expired, and “We’re sorry, but we can’t give you anymore.” He tried three times to call his doctor’s office, and four days later he passed away from not having his insulin.111
Prescription requirements for insulin cannot be justified on the grounds that patients do not understand how to safely use the drugs, especially when the risks of not having access far exceed the risks of use.
In emergency situations like Kevin Houdeshell’s, patients are permitted to access emergency doses of insulin. Houndshell’s pharmacist was not aware of the emergency exception though, and his family doubts whether an emergency dose would have been enough, but the policy of granting emergency exceptions to prescription requirements highlights another way that prescription requirements can cost lives. Rescue drugs are those that are needed during emergencies rather than for long-term use. In addition to diabetes, rescue drugs can treat drug overdoses, asthma attacks, and allergic reactions. But for rescue drugs to work, they must be accessible not only to patients but also to bystanders who encounter people in need.
Most prescription requirements require patients to receive authorization from a physician to use a drug. But rescue drugs are not generally self-administered, so typical prescription requirements are not well suited to ensure that patients can benefit from drugs during emergencies. For example, naloxone is a drug that can prevent opioid drug users from dying of overdoses. Naloxone requires a prescription, but unlike most prescriptions, it is sometimes prescribed to community health workers or opiate users so they can treat others who are incapacitated after an overdose. Naloxone is safe and easy to administer, and it is not harmful even when given to a person who is not experiencing an overdose. The benefits of naloxone are significant, but prescription requirements may prevent naloxone from helping those who would benefit most. Recreational opioid users may be reluctant to seek a prescription for naloxone, not only because doctor’s visits are expensive but also because users may be afraid of judgment from their physicians. In some cases, opioid users may avoid physicians because they are afraid they would then lose their supply of drugs. Even if users do visit a (p.106) physician to obtain a naloxone prescription, some doctors do not prescribe naloxone for users because they believe that making opioid use safer will encourage abuse. This belief is mistaken. Naloxone does not encourage drug abuse, but it does effectively prevent deadly overdoses.112 Like the prevention of unwanted pregnancies and HIV transmission, preventing drug overdoses is an urgent public health priority. Yet prescription requirements stand in the way by blocking access to a safe and beneficial drug.
More generally, relatively safe drugs that can prevent a person from dying during a medical emergency should be available over the counter. For example, asthma inhalers, epinephrine auto injectors, and glucagon should be accessible over the counter so people can use the drugs to provide first aid in the event of asthma attacks, anaphylaxis, or severely low blood sugar. Schools, day cares, workplaces, and gyms are not currently permitted to keep albuterol inhalers on hand to treat asthma attacks, though lay responders may attempt first aid and cardiopulmonary resuscitation (CPR) during emergencies, and businesses may purchase automated external defibrillators to treat life-threatening cardiac events. The same considerations in favor of allowing CPR training and the sale of defibrillators are also reasons to allow greater access to inhalers. Respiratory emergencies can be as dangerous as cardiac emergencies, yet simply because one kind of emergency is treated with a drug and the other is treated with a technique or a device, help is more readily available for cardiac patients.113
From a public health perspective, drugs with the potential to save lives during emergencies should be promoted, not restricted. Though rescue drugs do have significant risks if used incorrectly by lay responders, the risks of limiting access to the drugs are much greater because they treat life-threatening emergency conditions. Concerns about misuse could be addressed by better labeling and by selling rescue drugs behind the counter so that patients have an opportunity to discuss proper use with a pharmacist before purchasing them. Or, just as businesses post information about first aid and CPR, they could also post information about how to use rescue drugs.
These examples show the ways that prescription requirements that are ostensibly for the sake of public health can undermine public health in some cases. So even those who are unconvinced by arguments for rights of self-medication (p.107) should still favor a less prohibitive prescription drug system that enables people to access drugs in cases where the medical and overall benefits of a drug far outweigh the risks and barriers to access. Preventive medicine is a core component of public health promotion. Policies that stand in the way of preventive medicine may be designed to protect patients, but insofar as regulations prevent people from protecting themselves from overdose, disease transmission, pregnancy, heart disease, or asthma attacks, prescription requirements are themselves a threat to public health.
3.8 Conclusion
I have argued that people are entitled to decide to use pharmaceuticals for medical or non-medical reasons, and prescription requirements paternalistically substitute the judgments of physician and regulators for the consumers’ and patients’. The prescription drug system restricts important freedoms, such as the right to die, the right to use recreational drugs, the right to enhance one’s cognitive or athletic abilities, and the right to use pharmaceuticals for other non-medical reasons. Even those who reject the claim that patients have the right to use drugs for non-medical reasons should still support prescription drug reform though, because some prescription requirements, by making preventive and emergency treatments inaccessible, curtail the goal of promoting the public’s health. In these cases, prescription drug reform is especially urgent.
No comments:
Post a Comment