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Unpublished Paper
The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines
ExpressO (2007)
  • Jessie Hill, Case Western Reserve University
The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose “partial-birth” abortion and the right to use medical marijuana, decided just one year apart, the Supreme Court reached radically different results, based on radically different reasoning. In Stenberg v. Carhart, the Supreme Court recognized an almost absolute right to choose a particular abortion procedure if the procedure is the safest for the woman, refusing to defer to the state’s view of the relevant medical facts. In United States v. Oakland Cannabis Buyers’ Cooperative, by contrast, the Court took a dim view of the claim that patients have a right to access marijuana as a last-resort medical treatment, and the Court deferred to Congress’s finding that marijuana had no medically acceptable use in the face of abundant evidence to the contrary. These two cases are on a doctrinal collision course: both the “partial-birth” abortion issue and the medical marijuana issue are making their way back before the Supreme Court, as are other cases raising similar issues. In light of this pressing conflict, the goal of this Article is to view all of the constitutional cases touching on medical treatment decisions as one body of doctrine, as no other scholar has done. And indeed, this new perspective reveals that there are in fact two distinct lines of constitutional doctrine touching on the right to make medical treatment decisions: the “public health” line of cases, which emphasizes the police power of the state over individual rights, and the “autonomy” line of cases, which emphasizes individual bodily integrity and dignitary interests. Those lines of cases have grown up in parallel, appearing to represent airtight doctrinal categories while in fact addressing the same fundamental question. In addition, courts have applied varying degrees of deference to legislative determinations of medical fact without any logical consistency, perhaps based on largely superficial determinations about what type of case is before it. This Article concludes that a constitutional right to protect one’s health should be consistently recognized; that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state’s real and legitimate interest in regulating the practice of medicine to protect the public.
Publication Date
March, 2007
Citation Information
Jessie Hill. "The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines" ExpressO (2007)
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