Your Body, Their Rules

Doctors — exercising their professional judgment — refused to perform the ill-advised procedure—even after police secured a warrant. Doctors lacked the detainee’s informed consent and were concerned that if they attempted to remove the baggy, it might burst, causing whatever it contained to leak out and get rapidly absorbed through the rectal lining — potentially killing the detainee.

Officers then threatened to arrest the doctor in charge for refusing to violate the patient’s bodily autonomy and, in the process, threatened the doctor’s own autonomy. The doctors stood their ground, and the police eventually released the detainee after failing to recover any evidence of the suspected crime of possessing a government-forbidden substance. Ultimately, the police didn’t arrest any doctors but retaliated against the hospital by abruptly refusing to provide security. The hospital is now suing.

More than a century ago, the great jurist Benjamin Cardozo wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages…” That admonition forms the basis of what medical ethicists teach to medical students from their earliest days in medical school.

Medical decisions ought to be between patients and their doctors — free from government intrusion. Doctors respect an adult’s autonomy and will not perform a test, procedure, or treatment without their patient’s informed consent. Whether prohibiting us from consuming a substance that the government doesn’t approve of or requiring a doctor to perform an ill-advised medical procedure under threat of criminal prosecution, we can always rely on our government to assault our autonomy.

Competent adults ought to be able to choose what they put in their bodies and decide for themselves whether to undergo a medical procedure. If a patient demands a surgeon perform an unnecessary and potentially risky procedure, the surgeon should refuse. Likewise, agents of the state who wield unchecked power and wear a cloak of immunity have no legitimate authority under our constitution to demand that the surgeon violate their oath to do no harm by performing the procedure.

Society holds law enforcement to a vastly lower ethical standard than nearly every other profession. Whether a combative prisoner or a well-dressed executive, when a patient presents at an emergency room, they can count on doctors and nurses to treat their ailments and save their lives—without passing judgment on their character, status, or difference of opinion.

Contrast this with the Lorain, Ohio Police Department, which terminated its security agreement with Mercy Hospital after the hospital took a position the police disagreed with. While doctors can be held personally liable for lapses of professional judgment, police officers are too often granted immunity from civil claims for their misconduct.

Over the years, courts have grown increasingly deferential to government, particularly when conflicts arise between individual autonomy and state power. This is exacerbated by a judiciary disproportionately comprising former courtroom advocates for the government. Just 13 years after then-Judge Cardozo’s pronouncement — in an opinion that’s technically still good law—the U.S. Supreme Court endorsed compulsory eugenic sterilization, with Justice Oliver Wendell Holmes writing for the majority, “Three generations of imbeciles are enough.”

If the past is prologue, society should heed Justice Cardozo’s decree and put patients back in the driver’s seat. It is not within the province of government to make healthcare decisions on our behalf—forcing unwilling participants to violate their oaths in the process. Lawmakers must respect the right of competent adults to police their own bodies. When they fall short, an engaged judiciary must be willing to rise to defend this principle.