Academic Legal Writing - Eugene Volokh [30]
A man breaks into Katherine's home. She reasonably fears that he may kill her (or perhaps seriously injure, rape, or kidnap her). Just as Alice may protect her life by killing the fetus, Katherine may protect hers by killing the attacker, even if the attacker isn't morally culpable—for instance, if he is insane. And Katherine has a right to self-defense even though recognizing that right may let some people use false claims of self-defense to get away with murder.
Ellen is terminally ill. No proven therapies offer help. An experimental drug therapy seems safe because it has passed Phase I FDA testing, yet federal law bars the therapy outside of clinical trials because it hasn't been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, the 2006 D.C. Circuit panel decision in Abigail Alliance for Better Access to Develop mental Drugs v. Von Eschenbach—since vacated and now being reviewed en banc—would secure Ellen the constitutional right to try to save her life by hiring a doctor to administer the therapy.
Olivia is dying of kidney failure. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense might save Katherine's, and an experimental treatment might save Ellen's. But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia must wait years for a donated kidney; she faces a 20% chance of dying before she can get one. Barring compensation for goods or services makes them scarce. Alice and Ellen would be in extra danger if doctors were only allowed to perform abortions or experimental treatments for free. Katherine likely wouldn't be able to defend herself with a gun or knife if weapons could only be donated. Likewise, Olivia's ability to protect her life is undermined by the organ payment ban.
My claim is that all four cases involve the exercise of a person's presumptive right to self-defense—lethal self-defense in Katherine's case, and what I call “medical self-defense” in the others....
Here too there are risks. First, the claim itself is only described in the fifth paragraph (not counting the introductory sentence). Second, the first two paragraphs describe well-known and uncontroversial doctrines. That's their point: They are setting up two uncontroversial examples so the author can argue that the next two examples are analogous to the first two. But an impatient reader might just be annoyed that the first two paragraphs are restating the familiar.
Yet the claim is pretty clearly foreshadowed starting with the third paragraph, where the analogy between protecting life using pharmaceuticals and protecting life using abortion or lethal self-defense is drawn. And if the analogy set forth in the first four paragraphs is powerful, it may be the best way to frame the article's thesis, by getting readers to view things from the outset using the author's analogy.
Note, by the way, what this Introduction doesn't have: It doesn't have any warm-up language describing substantive due process, talking abstractly about courts and tragic choices, saying that courts must sometimes protect important fundamental rights against the democratic process, and the like.
Rather, it starts concretely, with the two hypotheticals that are necessary to understand the analogy at the heart of the article, and moves on quickly to the two specific controversies that the article will offer to resolve. General discussion about how all this fits within the broad debate about unenumerated rights has to be included somewhere in the article. But it shouldn't go at the start of the Introduction, where the goal is to quickly convey to the reader