Abstract
In her Pharmaceutical Freedom, Jessica Flanigan argues that antibiotics can be regulated consistent with her otherwise largely deregulatory view with respect to pharmaceuticals and recreational drugs. I contend in this essay that the reasons for justifying antibiotic regulation are reasons that can be offered to justify the regulation of many other drugs, both pharmaceutical and recreational. After laying out the specifics of Flanigan’s view, I suggest that it is amenable to the regulation of drugs like varenicline. Though such drugs can legitimately improve the quality of a patient’s life by helping them quit smoking, they could be permissibly regulated if they expose others to impermissible risks. I then argue that recreational drugs like alcohol could be regulated using the same reasoning. In the penultimate section of this essay, I anticipate objections that one might have to my extension of arguments favoring antibiotic regulation to drugs correlated with aggression. Flanigan might find my extrapolation of her view as entirely plausible and accept that her view is relatively friendly to these regulations, or she might reconsider her antibiotic caveat if these regulations are overly paternalistic on her understanding. I conclude by briefly considering the benefits and drawbacks of adopting each view.
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Notes
I follow Feinberg (1988) in understanding a harm as a setback of one’s interests. A wrong, for the purposes of this paper, is a harm that is not consented to that is inflicted upon an individual by another moral agent. One is harmed when he falls down a flight of stairs, but is wronged when he is shoved unknowingly by somebody down that same flight of stairs.
Some have argued, as Oberdiek (2017) does, that exposing others to impermissible risks (a term I borrow from his work) is not only in itself wrong but itself constitutes a rights violation. I do not make this claim here because the burden would fall on me to show why this is the case. My line of argument is nonetheless friendly to such a revision. If indeed an imposition of impermissible risk is a violation of one’s rights, the case for regulating the pharmaceuticals and recreational drugs of interest in this piece would be made stronger.
We need not know exactly what the threshold is for “a high degree of belief” or “significant likelihood” to know that such thresholds exists. These thresholds are alluded to by Flanigan when she refers to “undue risks of harm.” What specifically constitutes this threshold can be properly determined by public health officials, statisticians, and the like. Assume, for our purposes, that the significant likelihood of wronging others to which I allude in this paper is equivalent to, or higher than, the likelihood of wronging others by misusing antibiotics.
One might point out that not all violations of bodily integrity are nontrivial. Getting a papercut on your finger, for example, might be considered trivial although it affronts your bodily integrity. When I refer to the violation of one’s bodily integrity in this paper, I refer to that category of violations which compromise the health of an individual, or more generally stand in the way of that individual’s ability to lead the life she wishes to.
Jesse Spafford and Suzie Love both raised this objection in some form against my view while I was working on an earlier version of this paper.
I am indebted to Jesse Spafford for raising this objection and providing me with these compelling analogies.
Thanks to James Stacey Taylor for bringing this consideration to light.
Restrictions on the amount of alcohol that an individual can purchase from liquor stores seems to be especially feasible. There are similar restrictions on the amount of ephedrine and pseudoephedrine (ingredients found in many over-the-counter decongestants and meth alike) that an individual can purchase monthly. What’s more is that people are required to provide identification when purchasing decongestants that contain ephedrine and pseudoephedrine (United States Food and Drug Administration 2017). I thank Andrew I. Cohen for bringing my attention to these regulations.
Andrews (2019) discusses measles outbreaks that happened in an upstate New York ultra-Orthodox Jewish community. The state of New York eventually banned religious exemptions for vaccines because of these outbreaks, even though those primarily affected by them were members of relatively isolated communities (Rosenberg 2019).
Whether or not there is an injustice in the case of Danny and Nancy, and antibiotic regulation and alcohol regulation relies on other costs involved in the enforcement of the law. It is conceivable that the costs associated with regulating alcohol in the manner described in this paper are not so high as to warrant regulation that is distinct from the kind that is applied to antibiotics.
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Acknowledgements
Above all, I want to thank Jessica Flanigan for writing a book as important as Pharmaceutical Freedom, and for reading and providing feedback on an earlier draft of this paper. I would also like to thank James Stacey Taylor for inviting me to contribute a piece to this symposium, in addition to Andrew I. Cohen, Meagan Fraser, and Jesse Spafford for providing me with helpful written feedback on this piece. I am also indebted to conversations with Andrew I. Cohen, Andrew J. Cohen, and Suzie Love that helped me form more completely the argument of this paper.
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Kianpour, C.K. It Only Affects Me: Pharmaceutical Regulation and Harm to Others. HEC Forum 34, 269–289 (2022). https://doi.org/10.1007/s10730-020-09409-5
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DOI: https://doi.org/10.1007/s10730-020-09409-5