In the recent case of Abigail Alliance v. von Eschenbach, a divided panel of the United States Court of Appeals for the D.C. Circuit held that the due process clause required the Food and Drug Administration (FDA) to allow terminally ill patients the opportunity to use last-hope drugs that have not received final FDA approval.

In a forthcoming Harvard Law Review article, UCLA Law Professor Eugene Volokh offers a new doctrine of "medical self-defense" that also justifies this ruling. Volokh suggests that the medical self-defense principle could be applied to the constitutionality of abortion rights and would provide constitutional grounds to strike down laws prohibiting financial compensation for organ donation.

Is medical self-defense a coherent legal concept that can justify constitutional intervention by courts in controversial cases regarding abortion or organ sales? Could it become a tool used by judges to substitute their policy preferences for those of legislators? Is Professor Volokh correct that litigants have a feasible chance of the doctrine finding a home in the Roberts Supreme Court?

Participants at this event will discuss these and other questions. Professor Volokh's presentation will be followed by a discussion with two other distinguished law professors, Richard Epstein of the University of Chicago and Jeffrey Rosen of George Washington University. Ted Frank, director of AEI's Liability Project, will moderate.