The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines

70 Pages Posted: 24 Sep 2007 Last revised: 14 Aug 2008

See all articles by B. Jessie Hill

B. Jessie Hill

Case Western Reserve University School of Law


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, the Supreme Court reached radically different results, based on radically different reasoning.

More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, 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.

Keywords: Medical treatment, medical marijuana, partial-birth abortion, D&X, D&E, due process, Gonzales v. Carhart, health exception, public health

JEL Classification: K19

Suggested Citation

Hill, Beatrice Jessie, The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines. Texas Law Review, Vol. 86, No. 2, December 2007; Case Legal Studies Research Paper No. 07-28. Available at SSRN:

Beatrice Jessie Hill (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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