Libertarians have been stalwart opponents of the War on Drugs since its inception — a position which has brought them ridicule and scorn until relatively recently, when the tide of popular opinion began to shift. Now, we see grassroots support for dozens of reforms across the states. However, the Federal Government clings to prohibition and refuses to admit that it has always been losing the war, and is now losing public approval.
Are people waking up to the principle of self-ownership, or is the change based on a simple recognition that the War on Drugs has failed? It costs too much to enforce and generally harms the very people it is intended to help.
Meanwhile, another War on Drugs receives less attention in the media, but the consequences and futility are no less grave. While Drug Enforcement Agency raids may ruin lives with spectacular flair and speed, the Food and Drug Administration’s (FDA) system of tight regulatory controls on pharmaceuticals is a silent killer.
Jessica Flanigan is a professor in the University of Richmond’s Jepson School of Leadership Studies who specializes in ethics. She says that restrictions on pharmaceuticals are some of the most unethical laws on the books. Her 2017 book, Pharmaceutical Freedom: Why Patients Have a Right to Self-Medicate, is a groundbreaking philosophical treatise against drug prohibition— just not the kind you're used to hearing about.
Flanigan argues that the medical profession and its regulators have limited people’s access to life-saving and life-enhancing drugs without any valid justification for doing so. The FDA’s defenders would point to the complicated risks of medication as justification, i.e., people don’t understand their decisions. To this, Flanigan says that we allow people to make complicated risky decisions all the time — think marrying another person, or buying a car. Somehow, despite having no expertise in automobiles or interpersonal psychology, people manage to make informed decisions with knowledge of their personal preferences and the help of the marketplace, and the world goes ‘round.
While she makes some exceptions allowing safeguards for children and incompetent adults, Flanigan says that the logic behind her radical proposal is no different from that underlying the laws of informed consent. Informed consent, which became binding on physicians in the 1970s, holds that information about a diagnosis or treatment cannot be withheld from a patient–even when the doctor thinks they are acting in the best interest of a patient. As the American Medical Association puts it, “Patients have the right to receive information and ask questions about recommended treatments so that they can make well-considered decisions about care.”
Where did doctors and regulators get the idea that the people need benevolent experts to make decisions regarding the most intimate areas of their life in the first place? Look no further than the Hippocratic Oath of the 5th century BC:
“Conceal most things from the patient… Give necessary orders with cheerfulness and serenity… revealing nothing of the patient’s future or present condition.”
One would hope that the shift to informed consent heralds a broader change in public opinion that recognizes the inherent value of autonomy. Flanigan backs up her case for pharmaceutical freedom with a mixture of deontological and consequentialist arguments. That means she finds reasons to end the clampdown on pharmaceuticals based on both inherent bodily rights — namely self-ownership — and on the good effects or consequences that flow from such a policy. While some die-hard libertarians might still support the “right to try” an experimental treatment that is simply poison, most see that the real world has numerous alternatives to government regulation that can guide patients to make better decisions.
Jessica Flanigan joined the show (8/12) to dispel common fears around deregulating pharmaceuticals — from Thalidomide babies to designer drugs that would give their users unfair advantages. Tune in live and call in with your questions: (424) BOB-SHOW
- Pharmaceutical Freedom: Why Patients Have a Right to Self-Medicate 
- “Pharmaceutical Freedom” Jessica Flanigan, Hayek Lecture Series — YouTube (40 minutes)
- Informed Consent — Stanford Encyclopedia of Philosophy
- Libertarianism and medicine — The Washington Post, Volokh Conspiracy, Sept. 21, 2017 by Jessica Flanigan