In general, libertarians oppose laws requiring a physician’s prescription for purchase or dispensing of controlled drugs, on the grounds that these restrictions are paternalistic infringements on an individual’s right to choose for himself or herself. But under what conditions might libertarians support prescription laws?
Libertarian activist Rachel Mills recently asked on Facebook whether baby formula should be available by prescription and for medical reasons only. Given that there is clear evidence for vast benefits from exclusive breastfeeding up to six months, and no medical evidence for any advantage of infant formula over breast milk at any stage of an infant’s life, it would seem that responsible mothers would do everything they could to breastfeed rather than feed formula. In some cases, of course, breastfeeding might not be an option, due to disease, adoption, etc. What’s important here from a libertarian point of view is that there are third-party effects: a mother’s choice to feed formula can harm her baby.
So it’s not obviously crazy for a libertarian to advocate a drastic increase in government regulation of infant formula. On the other hand, before taking any policy position here, we have to consider relevant “sociological facts,” including the fact that mothers generally want what’s best for their babies. Is government regulation really necessary? Breastfeeding is on the rise, although it’s nowhere near where it ought to be (babies should be breastfed up to a year of age and exclusively so up to six months). Also: do we want to set a precedent for invasive government regulation of family life whenever science shows a possible rationale? On balance, I think there is a strong practical (but not “in principle”) case to be made against regulating baby formula in this way.
One area where I do support retaining prescription laws is for the dispensing of antibiotics. Due to overprescription of antibiotics, drug-resistant strains of bacteria have emerged. It is increasingly important to limit the taking of antibiotics to situations in which they are truly necessary. Misuse of antibiotics can be viewed as a violation of rights – an act that potentially fortifies microorganisms that attack others’ bodies.
Otherwise, however, I think the libertarian case against prescription laws is strong. Let customers decide whether to take painkillers – or chemotherapy for that matter. Sane adults will want to take good medical advice into account when making these decisions, and it ought ultimately to be their choice whether or not to do so.
What about prescription drugs that facilitate suicide, including some strong painkillers? Apparently, reducing opportunities to commit suicide has a surprisingly large effect on suicide rates – suggesting that individuals choose to go ahead with it under relatively restricted circumstances (and decide not to go through with it if it is made even marginally more difficult). It is certainly paternalistic but perhaps justified in these potentially extreme cases?
Regulating most people’s access to drugs for the benefit of a tiny minority does seem like overkill; however, I would regulate assisted suicide (but not ban it altogether) to make sure that those undertaking it really are committed to doing it.
If you’re going to go by the “third party effects” argument, shouldn’t you require prescriptions for all children’s medicines that present a possible risk? The argument for that actually seems stronger than the breastfeeding argument.
Sure, that’s another possible extension; I don’t see anything wrong with it “in principle.”
Antibiotics has always been the Achilles’ heel for regulation. In a way, it’s like a war, except against bacteria instead of other nations.
But, since you’re making a utilitarian argument here, it’s then important to look at the total overall utility. Governments were responsible for killing half a billion people in the 20th century (wars and democide). Since you need a governmental structure to enforce the antibiotics regime, it’s worth measuring that number against the numbers who would die from antibiotic-resistant strains in the absence of the regulation. The dream of a minarchist state has failed in a short period of time every time it’s been tried, so without a radical new proposal for how one could be sustained, the large-government case has to be the null hypothesis.
To make ‘the war’ really effective, somebody prescribed antibiotics really should go for a urinalysis every day, to make sure they’re not stopping their course early. Is that too high a bar? Probably it is, in a world where docs will give a patient an antibiotic prescription as a placebo when they have a virus.
Well, no political system has ever worked, including anarchy. That’s just the human condition. So I don’t think it’s appropriate to use the argument “but governments kill hundreds of millions of people!” every time someone advocates, say, putting traffic lights on roads or punishing stock market fraud. Let’s have a sense of proportion here. And just because one limited kind of intervention might make sense to protect rights in a given scenario doesn’t mean that any intervention would be justified in the same case (“death penalty for theft!”). Finally, I wouldn’t agree that my argument for regulating antibiotics is utilitarian; I think abusing antibiotics violates the rights of others, or at least poses a risk of violating the rights of others.
It’s only true that there is “no medical evidence for any advantage of infant formula over breast milk” if you ignore the cost breastfeeding mothers incur in loss of time and autonomy.
Breastfeeding can be very costly* and there are legitimate reasons not to do it or not to do it every time, besides “disease and adoption”. The tradeoff to be made between the potential benefits to infant health and the concrete costs to the mother is a choice she should get to make without state interference.
* http://www.theatlantic.com/magazine/archive/2009/04/the-case-against-breast-feeding/7311/
These cases seem quite dissimilar. As Kayla’s comments point out, breastfeeding is not costless. Moreover, the same experts that are now touting the advantages of breastfeeding would, 50 years ago, have been putting babies onto formula. The point isn’t that there’s nothing to choose between these conflicting camps of medical advice; we know things now that we didn’t know then. It’s that medical knowledge is a moving target, and it makes no sense to institutionalize imperfect knowledge (in the process prohibiting the process of natural experimentation that so often advances knowledge).
The commons problem represented by antibiotics is a good one, all right, and I don’t have a solution to it offhand (or onhand). But it would be a big mistake to generalize from the special conditions that make it the peculiar commons problem it is to more general policies on health or even prescription medication.
I certainly don’t disagree with either point. As noted in my post, I oppose requiring prescriptions for formula b/c it would give a precedent for interfering heavily in family life on the basis of medical knowledge about which there will always be some uncertainty, and I think the antibiotics problem is virtually unique.
I sympathize, but disagree because of the disparity between the immediacy of harm from the regulatory enforcement and the non-immediacy of harm from the effects of baby formula or excessive anti-biotic consumption. Threatening people with harm for not breastfeeding or for taking anti-biotics without a prescription is immediate and certain. The threat that babies will not be as healthy as they would be otherwise, or that resistant strains of anti-biotics might develop, is much less immediate and certain.
Also, resistant strains of bacteria can develop from under-use of anti-biotics as well as their over-use. As I understand it, it’s actually more likely with under-use, because if you use enough anti-biotics to expose the bacteria to it, but not enough to completely eradicate it, then the surviving bacteria will survive and be less susceptible to anti-biotics. Prescription laws obviously encourage under-consumption of anti-biotics.
Theoretically, the underuse problem should only happen if people don’t follow doctors’ instructions, or if doctors make mistakes in what to prescribe, but it’s a point well taken.
Do parents really harm their child if they elect to do something other than what scientists currently believe to be “the best thing” for them? Even if we grant that breastfeeding does have all the supposed benefits, is it really true that a parent HARMS their kid if they feed her through other means? (Which is not at all clear, as Kayla and others have stated. There are many confounded variables in these studies: wealthy, intelligent parents tend to have smart and healthy kids; wealthy, intelligent parents tend to breastfeed more, etc.)
Do parents that teach their children creationism/ID harm them because the current scientific consensus backs evolution (or vice versa)?
Do parents that shop at WalMart harm their children when they know full well there is higher quality clothing available at Ralph Lauren?
I know that the rights of minors and the duties of others towards them are extremely difficult matters for all systems of morality/ethics, including libertarianism. That said, I would hope that libertarians give parents pretty wide authority to parent in a manner consistent with their conscience, and not invoke the power of the State when a parent, say, buys off-brand vitamins instead of Flintstones.
Is it really true that prescription laws are the only possible way to regulate access to antibiotics? Are there no other institutions that could do so? Hospitals? Licensing groups? Drugstores?
What if we completely deregulated the aspects of medicine that have to do with antibiotics? What would be likely to happen? My guess is that there would be clinics that would just take on illnesses where antibiotics were the solution. And the clinics would regulate their use, as they would have a vested interest in antibiotics remaining effective. The development of antibiotics would also be better funded.
I’m sure many problems will come up if we try this as a thought experiment, but we have to ask how many of the problems have at their root state intrusions into the medical system.
If removing the current intrusions is unthinkable, then it is probably not good to consider this a libertarian question. The problem is not that liberty couldn’t solve this medical problem. The problem is that asking about this or that particular law in a monstrously regulated area of the economy is not a true liberty question.
“I think abusing antibiotics violates the rights of others.”
Which rights? I may wish to live in a world where antibiotics are more effective. But do I have a right to live in such a world? Would my rights have been violated if someone had not invented antibiotics in the first place? Are they being violated by the non-invention of other medical products? Who owes it to me to invent such products?
Whether an unregulated market could solve the antibiotics issue is a prudential question, and you might be right that there are some ways for the market to handle the problem. My point was merely that there isn’t a principled moral argument against state regulation of antibiotics.
I may wish to live in a world where antibiotics are more effective. But do I have a right to live in such a world? Would my rights have been violated if someone had not invented antibiotics in the first place? Are they being violated by the non-invention of other medical products? Who owes it to me to invent such products?
Central to natural-rights libertarianism is the distinction between causing harm and failing to cause benefit. If I overuse antibiotics for myself, I risk causing harm to others. Failing to invent antibiotics or other medicines causes harm to no one. So the proper question is: Do I have the right to prevent you from creating drug-resistant bacteria that may infect me? And the answer is clearly yes.
Bio-warfare labs create things that might infect you, too. Often, they do so for the purpose of trying to create counter-measures against those infectious agents. Do they have no right to do so?
I think you’re equivocating with phrases like “may infect me.” “May” is quite ambiguous. It can mean “might possibly under some highly unlikely scenario, which we’re taking steps to prevent,” or it can mean “is highly likely to.”
In reality, we have the right to do all sorts of things that _might_ harm you, such as drive cars. You need to come up with a less exclusive standard to justify anti-biotics regulation unless you want to justify regulating a whole lot more than just anti-biotics.
I’m pretty comfortable with a sliding scale. Driving a car isn’t generally wrong/rights-violating, but driving a car drunk is. Developing a disease agent in the lab might generally be OK, but releasing it into the general population or using unsafe storage procedures might not be.
But who gets to determine the scale? Those who legislate. Though I’d trust a politician to distinguish between clear cut cases such as driving and drunk driving, what about the many controversial blurred cases, such as gun control?There, we empower politicians to impose their own conception of the right on a significant population that may strongly disagree. If we could give a principled reason why the government should interfere only with antibiotics and nowhere else, then regulation would be a good idea. In reality, however, this would blow open the door to political and economic self-interest/interest-groups.
I’d trust you or another libertarian to impose drug regulations without imposing others, but would any of us trust Washington?
Of course from a real-world perspective, the Government already regulates freely, but is this something to encourage?
Do you think there is a principled moral argument against using the state where it is not needed?
If I, though the ballot box, overuse the state, I risk causing harm to others. Do I have the right to prevent you from creating a law-resistant state that may harm me?
If I fail to take my antibiotics until the bottle is empty, I risk causing harm to others. But most would not want to create a state surveillance apparatus to prevent this harm. We value liberty too much to do so.
On the other hand, if this problem were a market problem, some companies might guard their drugs in this fashion. The thing about the state is that it makes many of the prudential actions of companies impossible. I think there is a principled argument against using it where it is not needed for that very reason.
Medical liberty supports other liberties. When we take all of these kinds of questions individually, it is very easy to make cases that some kind of intervention will decrease the amount of harm being done. I think there is a broad case that we shouldn’t do this. It works against the presumption of liberty.
Further, note how the current restrictions work. It is not illegal to take antibiotics when you don’t need them. It is illegal to purchase them without prescription. There may be other reasons for wishing to purchase antibiotics than immediately taking them. I may wish to stock them in case of a future threat. So now the state is telling me that I must live vulnerable to these infections because otherwise I might misuse my antibiotics. Regulation is not directly preventing harm, but creating an environment it thinks will make harm less likely. And doing this in a very shoddy way.
Currently, doctors tend to over-prescribe antibiotics for fear of being sued by patients. So the very regulation that is supposed to limit how much they are used may be driving their overuse.
What you’re arguing is essentially that using the least invasive means to a just end is morally required. I agree. So the state’s punishing murder with prison is justified, but the state’s scanning all our brains for potentially murderous thoughts is not. Requiring doctors’ prescriptions for antibiotics might be justified even though surveilling people to make sure that they take the full course is not. I’m not saying that it definitely is justified, but that it might be – and on libertarian grounds.
Let me try this again. I think I can pare it down:
“Due to overprescription of antibiotics, drug-resistant strains of bacteria have emerged.”
Overprescription is a problem that happens in the current regulatory environment. You must have prescription laws in order to overprescribe the drugs.
“It is increasingly important to limit the taking of antibiotics to situations in which they are truly necessary.”
What method would accomplish this? The state acting against physicians? Patients not being allowed to sue doctors? Are you asking doctors or patients to voluntarily limit themselves, or asking for more laws than we already have? It appears you are asking for the latter. So you are really saying that there is a libertarian case for even tighter regulation of drugs than we currently have. I think the current regulatory environment creates some of these problems, and we would do better to think of how this would improve without the regulations. To argue that since current laws are ineffective we need more of them doesn’t sound libertarian to me. I might in cases vote as you suggest for pragmatic reasons. But I won’t feel like a good libertarian when I do so.
You must have prescription laws in order to overprescribe the drugs.
By definition! But if there were no prescription laws, antibiotics would be used more.
Are you asking doctors or patients to voluntarily limit themselves, or asking for more laws than we already have? It appears you are asking for the latter.
There’s a negative externality here, so voluntary action is likely to yield suboptimal outcomes. On the margins, I think more can be done to discourage antibiotic use. The prescription system is one way of doing so. There may be other ways of doing so as well, but that’s an empirical question, not something we can judge a priori. Given these circumstances, advocating the retention of prescription laws isn’t any more unlibertarian than advocating the retention of, say, speed limits (since speeding likewise causes a risk of harm to others).
Why is it not justified under this line of reasoning to implement a surveillance program for people who are taking antibiotics? If drug-resistant pathogens are the problem, finishing the course is the only thing that can possible stop their development.
Over-prescription of antibiotics is only a rate issue; cutting down on that would likely slow the evolution of drug-resistant strains, but it certainly won’t stop them. If everybody finished their course, the over-prescription wouldn’t be a problem. But unless you can mandate a full course, the drug-resistant strains will continue to evolve.
Would it be libertarian in principle to mandate injectable antibiotics, where the rate of diffusion can be chemically controlled (with a single application) to ensure a full course? No surveillance required, just an injection. But oral antibiotics would need to be prohibited.
The surveillance program seems too intrusive for the harm it’s meant to prevent.
In principle the mandate you suggest might be justifiable on the rationale I’ve advocated here.
My main concern, though, is that without prescription laws, some people would take antibiotics whenever they got a sniffle.
“Do I have the right to prevent you from creating drug-resistant bacteria that may infect me? And the answer is clearly yes.”
Does this mean something other than:
“Do I have the right to prevent you from shifting the balance of a bacterial population from an antibiotic-vulnerable to an already-existing antibiotic-resistant population unless you are a farmer or have a doctor’s permission to foster such a strain?”
From what I read, we don’t create new strains by misusing antibiotics. They already exist. Also, over half of all antibiotic use is in agriculture, and it does have a big impact on resistance.
I think farmers’ use of antibiotics can be regulated as well, and I think that doctors who repeatedly misprescribe antibiotics might be subjected to some sanctions. The drug-resistant strains do develop only because of the use of drugs. Those bacteria that are relatively resistant (die later) survive when the course isn’t finished or the antibiotic used is too weak or inappropriate, and over time selection for the more resistant bacteria create strains of totally resistant bacteria (to that particular drug).
[...] would have huge negative externalities or may be viewed as a rights-violating act (see Jason Sorens here on this latter claim). Given the collective action problem, individuals would [...]
[...] a followup on my libertarian case for prescription laws, I note this recent story on Indian superbugs that are totally antibiotic-resistant: India’s [...]