Abstract
Proponents of the decriminalization of marijuana have long argued that various constitutional guarantees, including the right to privacy, should protect the personal use of this relatively harmless drug. With a few notable exceptions, our courts have not agreed with this claim.1 But recently there has been a series of constitutional cases involving individual autonomy and drug use that might possibly expand the right of the individual to make such decisions. Specifically, several federal courts have recently held that patients in state mental hospitals have a constitutional right to refuse psychotropic (mind-altering) drugs.2
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References and Notes
See Ravin v. State, 537 P.2d 494 (Alas. 1975), holding that the Alaska constitutional right to privacy in the home is violated by criminalization of private use of marijuana.
See, e.g., Davis v. Hubbard, 506 F. Supp. 915 (D. Ohio 1980); Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979), aff’d 634 F.2d 650 (1st Cir. 1980), remanded for consideration of state law, 457 U.S. 291 (1982); Rennie v. Klein, 653 F. 2d 836 (3d Cir. 1981), remanded for further consideration, 102 S. Ct. 3506 (1982).
Davis v. Hubbard, 506 F. Supp. 915.
See Beauchamp & Childress, Principles of Biomedical Ethics 63 (1979); Veatch, “Three Theories of Informed Consent,” in The Belmont Report,Appendix Vol. II, at 26–19 (National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 1978).
US 479 (1965)
See, e.g., Loving v. Virginia, 388 US 1 (1967); Roe v. Wade, 410 US 113 (1973); Carey v. Population Services International, 431 US 678 (1977).
US 113, 152–53.
US 113, 213.
Rogers v. Okin, 478 F. Supp. 1342. The circuit court based its affirmance entirely on the right to privacy, and declined to consider whether protected First Amendment interests were involved. The first amendment rationale had previously been enunciated in Kaimowitz v. Dept. of Mental Health, 2 Prison Law Rptr. 433 (1973), a case involving psychosurgery.
F. Supp. at 1366–67.
This theory was originally promulgated by M. Shapiro in “The Use of Behavior Control Technologies: A Response,” 7 Issues in Criminology 55 (1972) and later elaborated upon in “Legislating the Control of Behavior Control: Autonomy and the Coercive Use of Organic Therapies, 47 S. Cal. L. Rev. 237 (1974).
See Rhoden, “The Right to Refuse Psychotropic Drugs,” 15 Harv. Civ. Rts-Civ. Libs. L. Rev. 363 (1980).
See Rutherford v. United States, 438 F. Supp. 1287, 1298–1300 (W.D. Okla. 1977), aff’d 582 F.2d 1234 (10th Cir. 1978). After a complicated procedural history, this decision was ultimately reversed. 442 US 544 (1979). See also Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980 ); Rizzo v. United States, 432 F. Supp. 356 (EDNY 1977).
Note, “The Right to Choose an Unproven Method of Treatment,” 13 Loyola L.A. L. Rev. 227, 234 (1979).
See Comment, “The Uncertain Application of the Right of Privacy in Personal Medical Decisions: The Laetrile Cases,” 42 Ohio St. L. J. 523, 530 (1981).
See, e.g., United States v. Randall, 104 Daily Wash. L. Rptr. at 2249. See generally “State Interference with Personhood: The Privacy Right, Necessity Defense and Proscribed Medical Therapies,” 10 Pacific L.J. 773 (1979).
See “State Interference,” supra note 16, at 795.
P.2d 366, 369 (1975).
P.2d 494, 502.
See Borras v. State, 229 So.2d 244 (Fla. 1969), upholding marijuana prohibition on the grounds that the state has a valid interest in having healthy citizens, and that marijuana use is a threat to society in general as well as being harmful to individuals.
See, e.g., American Motorcycle Ass’n v. Davids, 11 Mich. App. 351, 158 N.W.2d 72 (1968), cert. denied 393 U.S. 1037 (1969) (overturning motorcycle helmet requirement).
Papachristou v. City of Jacksonville, 405 US 156 (1972).
See Comment, “Picking Your Poison: The Drug Efficacy Requirement and the Right of Privacy,” 25 UCLA L. Rev. 577, 613–15 (1978).
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Rhoden, N.K. (1984). Using and Refusing Psychotropic Drugs. In: Murray, T.H., Gaylin, W., Macklin, R. (eds) Feeling Good and Doing Better. Contemporary Issues in Biomedicine, Ethics, and Society. Humana Press. https://doi.org/10.1007/978-1-4612-5168-2_9
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