The Freedom Bulletin

There’s a debate going on in Massachusetts about whether written permission should be required for HIV testing or just verbal consent to medical treatment in general. Currently MA is one of only two states that require written consent, and groups who want to encourage more testing are trying to change this. Personally I don’t really care whether consent is verbal or written, but I think there need to be stronger, not weaker, consent requirements for all medical procedures.

We live in a system where, when someone goes into a doctor’s office, the doctor usually just tells them what medical tests they are going to have, maybe asking, as an afterthought, if that’s OK. This is wrong. As I explained in a blog post from yesterday, this is not true consent. Many people, especially if they are shy by temperament, find it difficult or impossible to refuse what a doctor tells them to do. We need a system where the patient, not the doctor, is in charge of medical decisions. Instead of saying what medical procedures are needed, doctors should tell people what services they offer (perhaps through a brochure, sheet of paper, or sign) and the person can indicate which services they would like, with advice from the doctor only if asked.

Another part of the proposed law would require doctors’ offices to have written permission before sharing a customer’s HIV status. This seems pretty reasonable. People should be in control of their own medical records, and it should be a no-brainer that doctors should not share information without the permission of the person the information is about. But of course, doctors had paternalistic and pompous things to say in opposition to the law:

Dr. Howard Heller…said the legislation would mean that each time he referred an HIV patient to a different specialist outside of his organization, he could not tell that provider about any HIV-related medications that patient was taking, without first getting the patient’s written permission.

And that’s a problem why?

“Each time we share information we would have to have written informed consent…and each step we put in the way puts more impediments to getting tested,” said Dr. Stephen Boswell.

That’s right, how dare the wishes of the people he is supposed to be serving get in the way of making them to do what he wants? I know doctors are trying to make people healthier, but too many of them have lost sight of the idea of liberty and the dignity of individuals. Doctors need to give up their paternalistic attitudes and start treating their customers with respect, just as members of any other profession would. They need to focus less on what they think is best for their patients and more on their patients’ wishes.

Last week federal judge Marcia Cooke overturned the Firearms Owners’ Privacy Act, a Florida law restricting doctors from asking people about guns unless there is a compelling medical reason.

The debate over this law involves an interesting conflict between the First and Second Amendments. The founding philosophy of America (and one that I strongly believe in) is that people have the right to live their lives however they please, as long as they don’t interfere with anyone else’s right to do the same. The right to bear arms is part of this and is specifically protected in the Bill of Rights, and so is freedom of speech. One person’s right to free speech should only end when another person’s liberty begins. But where exactly do you draw the line?

In my opinion, speech designed to pressure another person into acting as you want them to violates that person’s right to live their life as they please. Doctors, motivated by the desire to make people healthier, are one of the biggest culprits of this. When doctors ask people questions, or tell them what to eat, how much to exercise, or what medical tests to have, they are not using physical force, and people are not obligated by law to comply. But I still believe that this is coercive and therefore should not be protected by the First Amendment. Due to doctors’ elevated status in our society, it is difficult, if not impossible, especially for shy people, to refuse to answer a doctor’s questions or to decline medical procedures that a doctor firmly instructs them to have. Doctors need to treat their patients more like customers, only performing the medical procedures that the customers indicate they want and only giving advice when it is asked for. This might sound like a radical proposition, but a customer’s gun ownership is not a doctor’s business, nor are their eating habits, exercise, emotional state, sex life, drug use, or really any aspect of their life. What we need are more laws restricting doctors, however well-intentioned, from using their authority to pressure people into giving up their privacy rights or their freedom to live as they choose.

The Firearms Owners’ Privacy Act doesn’t even go as far as the laws that I would support – it still allows doctors to ask about guns if there is a compelling medical reason, and it doesn’t outright ban such questions but merely says that doctors “should” refrain. It was wrong to overturn this law. Florida Governor Rick Scott is appealing the decision, and I hope he prevails.

Google agreed today to pay $500 million to the federal government because it allowed Canadian pharmacies to use its advertising services. The problem, according to the government, is that the drugs from Canada sold on these websites are not subject to FDA approval and might even be available without a prescription.

But in a truly free society, this should not be a problem. Companies should not be able to deceive their customers by exaggerating the benefits or hiding the risks of their products. But this doesn’t mean that people should only be allowed to have the medications that the government has determined are safe. People have a right to buy medications from other countries if they want to, including those that are risky or unproven, and people certainly have a right to make their own decisions about what medications to put into their bodies, with or without a doctor’s input.

The investigation into Google is just another example of how the FDA – in particular the Durham-Humphrey Amendment, which made it illegal to obtain many medicines without a doctor’s permission – unjustly takes away people’s liberties.

Remember when the FDA decided to require all cigarette packages to display graphic warning labels? Five tobacco companies  - R.J. Reynolds, Lorillard, Commonwealth Brands, Ligget Group, and Santa Fe Natural Tobacco Co – are suing in federal court to stop this. Although tobacco companies are far from sympathy-evoking, and although they are almost certainly motivated at least in part by financial gain in this lawsuit, the fact is that they are right. These warning labels are paternalistic and are an affront to individual liberty.

The lawsuit reads,

“Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally-charged government message urging adult consumers to shun their products.”

It continues,

“This is precisely the type of compelled speech the 1st Amendment prohibits.”

I couldn’t have said it better myself. Manufacturers should not be allowed to put lies or deceptive statements on packages. It even makes sense to require companies to provide factual information about their products, such as ingredients, risks, and benefits, on packages. But these labels – graphic pictures of diseased lungs, caskets, and dead bodies – go far beyond providing information. They are propaganda designed to disgust people and make them avoid smoking. They are also paternalistic because by requiring them, the FDA has decided against giving people the facts and allowing them to make their own decisions, and decided instead that people should be emotionally manipulated into doing what the FDA thinks is best for them.

It would be bad enough if the FDA displayed this insulting propaganda on government property or purchased advertisements with its own resources. But the new policy requires private companies – in fact the very companies that the warnings are targeted against – to use their resources to display the FDA’s propaganda. Requiring cigarette companies to speak the government’s message – an insulting, paternalistic, and anti-liberty message at that – is a violation of free speech rights.

Good news for liberty from the 11th Circuit Court of Appeals – in a 2-1 opinion, the three-judge panel ruled that it is unconstitutional for the federal government to require Americans to have health insurance. The decision was part of the lawsuit by 26 states against the Patient Protection and Affordable Care Act (“Obamacare”).

According to the majority opinion written by Judges Joel Dubina and Frank Hull:

“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”

Read the full opinion (PDF).