*1 Mar. No. 20340. 1979.] [Crim. PEOPLE,
THE Plaintiff and Respondent, PRIVITERA, JR., al., Defendants and et
JAMES ROBERT Appellants.
Counsel Patrick J. under Court, Hennessey, appointment by Defenders, Inc., under the Court Appellate S. appointment Appeal, Sinton, J. Bell, Kane, Paul W. Daniel F. Jerry Bamberg, Bamberg, & for Defendants and Flanigan Flanigan Stephen Tornay Appel- lants. II, Salciccia,
David H. Gill, Genochio, Gill Killen & D. Steven J. Greg Sohcot, Trecker Soler, & Arthur M. Mark I. Rosenberg, Rosenberg, Walker, Jackl, Belzer, Lane, Treuhaft Noble, & James Jackl & Scott V.. W. and Terrance W. Amici Curiae on behalf of George Cody Flanigan Defendants and Appellants. *4 J. General, Winkler,
Evelle Jack R. Chief Assistant Younger, Attorney General, Kremer, General, Daniel J. Assistant A. Attorney Attorney Petersen, Jr., Wells D. Bernard A. and Robert Harley Mayfield, Delaney, Foster, General, M. for Plaintiff and Deputy Attorneys Respondent. Hassard, Huber, Hassard, Howard & S. Bonnington, Rogers Joseph Willett, Zimmerman, Gavello, David E. Rick C. A. Grace Rogers, Gary Monaco, Miller, Powers & John K. Van de District Wheatley Kamp, Sondheim, B. (Los R. Attorney Angeles), Harry Barry Levy, Deputy Shenefield, District John H. Assistant General Attorneys, Attorney Grossman, O’Sullivan, (United States), Catherine G. Peter L. De Barry Cruz, Fein, La E. Bruce Richard M. M. Pfeifer and Cooper, Eugene Arnold I. Friede as Amici Curiae on behalf of Plaintiff and Respondent. Opinion
CLARK, J.Under 1707.1, California Health and Code section it Safety sell, deliver, is a misdemeanor or administer or prescribe any drug treatment, device in the to be used alleviation or cure of cancer diagnosis, which has not been federal U.S.C. (21 approved by designated agency Code, 355) or the state board & Saf. (Health 1704).1 § § sale, sale, sale, 1Section 1707.1 “The for for provides: offering holding delivering, medicine, or giving away, administering drug, or device to prescribing compound treatment, used alleviation or cure of cancer diagnosis, is unlawful and (1) unless an thereto has been prohibited application under Section respect approved Food, Act, (2) 505 of the Federal and Cosmetic or there Drug has been an approved doctor, Privitera, Jr., William a medical James Robert Defendants Davis, Turner, Winifred Blanche David Disney, Agnes Phyllis were convicted Carroll Ruth Leslie conspiracy by jury felony for an sell drug—laetrile—intended prescribe unapproved 1; Health Saf. Code, subd. & or cure of cancer. (Pen. alleviation § laetrile Code, were convicted of L) 1707. Davis and Turner also selling § Code, 1707.1.) Saf. (Health alleviation or cure cancer. & § (see Viewed in the most favorable to light judgments People 417, 475 P.2d 649]), Cal.3d (1970) Cal.Rptr. Reilly conclusion that defendants were evidence jury’s amply supports sell and distribute involved in common import, plan prescribe, as or vitamin to cancer B-17) referred to (also laetrile patients. amygdalin for cancer and referred his Dr. laetrile Privitera prescribed patients referred laetrile. Turner suppliers Disney Disney patients worked as to Dr. Privitera for treatment. Leslie Disney patients residential areas. Defendants told users distributors various prospective for cancer. Laetrile is an effective treatment cure has laetrile one for that been designated governmental approved purpose agencies. *5 the the statute is unconstitutional.
Defendants on ground appeal the federal and California contend the by right privacy protected They of or, more a Constitutions includes a to obtain laetrile generally, right right of as effective. access government drugs recognized out, be Fundamental defendants regulated only point may rights, interest. Defendants extent to achieve a state necessaiy compelling argue and laetrile is fundamental therefore obtain purported right under reviewed state here must be regulation compelling challenged unconstitutional, interest standard. Section found be 1707.1 is defend conclude, ants when measured that standard. against
application have been compound use: compound controls used compound construction drug, device.” medicine, labeling such [11] medicine, use, (b) A compound made to or or or in the filed with the board and the and whether such advertising proposed device; device; for, compound full list of the show case of principle (d) or device as the board [H] manufacture, whether or not such (c) A full or A full a device and of the device, or description drug, setting articles principles statement to be used for such drug, processing medicine, a forth: full used as of the methods of its statement drug, may [11] articles compound (a) operation; [11] components require; medicine, composition Full packing of its used as reports used or device composition, properties compound of such (e) components medicine, [11] in, such of such Such and (f) investigations drug, Specimens effective in drug, or device samples drug, compound facilities and medicine or of the drug, medicine, medicine, which such such safe 702
We hold the asserted to obtain is not right drugs unproven efficacy in either the federal or the embodied encompassed by privacy review, therefore, state Constitutions. The standard of is the appropriate test, rational basis rather than the state interest test. We compelling conclude 1707.1 section satisfies standard amply applicable reasonable achievement bearing relationship legitimate state interest health and of its citizens. safety
The United
States Constitution
Court has held that
certain
regulations limiting
fundamental
be
state interest
rights may
justified only by
compelling
621,
(Kramer v. Union School District
395 U.S.
627
(1969)
L.Ed.2d
[23
583, 589-590,
618,
89 S.Ct.
v.
394 U.S.
1886];
(1969)
Shapiro
Thompson
600, 615,
L.Ed.2d
89 S.Ct.
Sherbert v. Verner
374
1322];
(1963)
[22
398,
971-972,
965,
U.S.
L.Ed.2d
83 S.Ct.
and that
1790]),
[10
enactments
be
must
drawn to
legislative
narrowly
express only
state interests at stake
v. Connecticut
381 U.S.
(Griswold
(1965)
legitimate
479,
510, 515-516,
L.Ed.2d
However, a fundamental is not at stake here. The privacy right *6 is, interest defendants “the interest in in allege apparently, independence certain kinds of decisions.” v. Roe 429 (1977) making (Whalen important 589, 73, 64, 599-600 U.S. L.Ed.2d 97 S.Ct. But the kinds of 869].) [51 decisions” court to date as “important recognized by high falling “ within the involve ‘matters right privacy relating marriage, and child procreation, contraception, family relationships, rearing ” Roe, 600, education’ (Whalen 429 U.S. at fn. 26 L.Ed.2d supra, p. [51 693, 405, Paul v. 74], at Davis 424 713 (1976) U.S. L.Ed.2d p. quoting [47 420-421, 96 S.Ct. but do not include 1155]), medical treatment. 2However, see, we shall even statutes exercise of a found restricting right by United States Court to be a fundamental are reviewed under the privacy right Wade, (Roe when the health
rational basis standard is danger significant. 147, 113, L.Ed.2d 182-183].) U.S. 163 [35 Wade, Roe v. 410 U.S. For this reason defendants’ reliance on 113, held the In that case a court is high misplaced. majority within a conclusion decision to have an abortion falls the privacy, from the earlier that activities court’s decisions following relating 535, 541-542 L.Ed. v. Oklahoma 316 U.S. (Skinner (1942) procreation [86 1660-1661, 62 S.Ct. v. Baird (Eisenstadt 1110]) contraception 349, 362-363, 405 U.S. 453-454 L.Ed.2d 92 S.Ct. 1029]) (1972) [31 were that at 152-153 L.Ed.2d at also U.S. (410 protected by right. pp. [35 However, that is not 176-177].) pp. emphasizing privacy right absolute, the court “The Court’s a stated: decisions recognizing also that some state in areas acknowledge regulation by protected above, noted a State As assert may properly appropriate. health, medical interests safeguarding maintaining important standards, life. . . . The in and in potential privacy right protecting therefore, volved, 153-154 be said to be absolute.” U.S. at (410 cannot pp. L.Ed.2d at 177].) p. [35 to health exists Roe v. Wade indicates when danger
Significantly,
under the rational basis standard.
shall be tested
(410
that state regulation
Indeed, the
at
court held in
182-183].)
U.S. at
L.Ed.2d
high
pp.
p.
[35
that a state
Roe v. Wade
encroaching upon any right
may—without
“in the areas of health and
its
interests
safety”
important
privacy—further
abortions be
at
licensed institutions which
performed
by requiring
maximum
for the
“insure
safety
patient”
prohibiting performance
abortion
a
not a
as defined
state law.
U.S. at
(410
by person
physician
149, 150,
163-165
L.Ed.2d at
The lesson of Roe
182-184].)
pp.
pp.
v. Wade for our case
that a
that a
be certified
drug
requirement
effective for its intended
a
means to “insure maximum
use is
reasonable
for the
safety
patient.”
In Planned
L.Ed.2d S.Ct. court struck down state 2831], prohibition high did not abortion on the particular procedure prohibition ground maternal relate to health. reasonably preservation protection discussing statutory prohibition Significantly, validity medical the court did not refer to constitutional consider- procedure, evaluated the court on ations of Rather was privacy. procedure under the rational of medical evidence of its and effectiveness *7 basis safety the that for basis standard. Planned Parenthood thus stands proposition the to have an be within constitution- decision abortion although may al zone compelling privacy deserving protection provided standard, is a medical the selection of a interest particular procedure
matter to which status does not attach and which be privacy may a rational regulated by basis for government, such providing . exists. regulation Roe,
Whalen
Court under upheld patient-identification rational requirement basis test. “The New York statute in this case challenged represents considered to deal with of vital local It attempt problem [a concern]. of an and rational manifestly decision. . . . product orderly legislative There was unreasonable surely nothing assumption aid enforcement of patient-identification laws requirement might to minimize the misuse of For the designed dangerous drugs. require- ment could to have deterrent effect on reasonably expected potential violators as well as to aid in the detection investigation specific least, instances abuse. At the it would seem clear that the apparent very 3The New York statute classified harmful drugs in schedules. potentially Drugs, five heroin, use, such as which are have no abused and medical are in highly recognized V schedule I. Schedules II include which have a through drugs lower progressively but for abuse also have a medical potential use. Schedule II includes the recognized most (Id., dangerous 69-70].) at 592-593 L. Ed.2d at legitimate drugs. pp. pp. *8 of interest in the distribution State’s vital controlling dangerous drugs for control. with new would a decision to techniques experiment support that the case teaches For an fails—if in this if experience experiment of foolish results requirement expenditure patient-identification information—the funds mountain useless legislative acquire It follows to terminate unwise remains available experiment. process that the enactment of the requirement legislature’s patient-identification (Id., at was a reasonable exercise of New York’s broad police powers.” 597-598 L.Ed.2d 72-73].) pp. at pp. [51 is, course, “It well settled that court reiterated:
Finally, high administration has broad State drugs powers regulating police at [660], v. 370 U.S. the health Robinson California, professions. Martinson, 45; 664-665; 256 U.S. at [41], ex rel. Minnesota Whipple Roe, 347 U.S. 449.” at v. Board (Whalen Barsky Regents, so, not had done fn. L.Ed.2d at it 75].) p. Although p. observed, “the State no doubt could the use of court prohibit entirely at If the Schedule II at L.Ed. (Id., 75].) p. drugs.” p. particular use ban a with a medical because state has recognized power drug abuse, for so—the for rational basis its doing then—given potential to ban a as effective its state has clearly drug recognized power use. intended statute is set state interest challenged expressed legitimate 1700. “The effective in section recited
forth- findings legislative care, from cancer or cure of treatment suffering persons diagnosis, Vital indicate statistics approximately paramount public importance. from result of the total deaths in United States annually percent It that accurate one or another of the forms of cancer. is established cancer, forms of followed by application prompt early diagnosis many either of methods treatment which are scientifically materially proven, or reduces the likelihood of death from cancer may materially prolong intensive life therefrom. useful of individuals Despite suffering [U] education, a lack of and accurate there is adequate
campaigns public methods information respect presently proven among public treatment, in this cure of cancer. Various for the persons diagnosis, themselves as State have and continue represent possess- represented skills, medicines, methods, or for the effective devices ing techniques, treatment, cancer, cure of which are representations diagnosis, numbers of the with the result that large public, misleading public, cancer, and substantial die of on such needlessly relying representations, *9 706
amounts of individuals and families on such savings relying are Code, wasted.” & Saf. (Health 1700.) § representations needlessly These were echoed Commissioner findings recently federal Food and with Administration reference laetrile. Drug specific “In Commissioner’s the use Laetrile in the United States opinion, has become a health doctors genuine public problem. Increasingly, with cancer are that the are dealing patients finding patients coming late, too while Laetrile. It seems therapy legitimate having delayed trying clear that another substantial afflicted with cancer is group persons effective Laetrile instead. The avoiding therapy altogether using has one life and become death for these and for question patients others who convinced use Laetrile in the future.” (42 may Fed.Reg. 39769.)
The commissioner rendered his at the conclusion of a opinion undertaken rulemaking with proceeding compliance opinion court of v. United Cir. appeals (10th States F.2d 1976) Rutherford 1137, and the order of the district court United States Rutherford (W.D.Okla. 1977) 105. a “Based careful review of the F.Supp. upon record,” administrative the commissioner found that “Laetrile is not as a safe and effective cancer generally recognized by qualified experts (42 39775.) commissioner further found drug.” laetrile does Fed.Reg. for from the new of the Federal qualify exemption drug provision Food, Act Cosmetic U.S.C. 301 et virtue of Drug, (21 § seq.) by with the 1962 clause the act. compliance (42 grandfather Fed.Reg. 39795.) commerce, Distribution of laetrile in interstate the commissioner concluded, is thus the Food illegal subject regulatory activity by Administration. Drug it,
Because defendants’ reliance on subsequent developments case will now be considered. In v. United States Rutherford Rutherford 1977) (W.D.Okla. district court set aside the F.Supp. action and commissioner’s federal authorities from enjoined interfering with distribution laetrile in interstate commerce or with use of laetrile for the treatment of cancer. The decision was based on two grounds: First, commissioner, to the conclusion reached the court contrary held that laetrile from the exempt premarket approval requirement new virtue of with the 1962 clause. (438 drugs by compliance grandfather Second, 1294-1298.) at we reach conclusion F.Supp. pp. contrary the court concluded the federal today, privacy encompasses own in connection one’s use nontoxic substance personal “right *10 at (Id., 1301.) health-care.” p. neither addressed the court
On appeals appeal by government, Instead, the nor issue. clause grandfather question used in the statute terms held that “the and ‘effectiveness’ court ‘safety’ “We are to ill cancer no reasonable have terminally patients.” application their are ill and cancer who terminally only only considering patients context, can Thus in this what use of Laetrile. intravenous ‘generally are mean as to such who so as ‘safe’ and ‘effective’ persons recognized’ no cure? What with a for which there is known stricken disease fatally in the absence of which be can ‘effective’ have may meaning anything Under this record Laetrile is as effective as used as standard? anything if all What can ‘effective’ mean standards else. person, by prevailing to die of cancer what be done.” The ... regardless may going the district court was continued but by injunction granted permanent to of intravenous of laetrile limited permit procurement only injections a licensed medical to who are administered by practitioner persons medical ill of cancer certified licensed to be by practitioner terminally 1978) in some form. v. United States Cir. 582 F.2d (10th (Rutherford 1234.)4 for,
Defendants can take no comfort in the court of decision appeals’ class unlike is not an action on behalf of the case Rutherford, ill cancer Whatever be said favor of terminally patients. may laetrile, there is no “terminal” cancer access to patients permitting in the their activities indication record that defendants to restrict sought laetrile. class when distributing administering prescribing, Indeed, neither took a the record reflects that Dr. Privitera sometimes nor for whom he medical from examined history personally patients defendants, course, laetrile. were lay qualified prescribed cancer, much a cancerous condition less to determine whether diagnose was “terminal.”
Moreover, we are not unreasonable the as reject explana- prepared for commissioner the Food and tion Administration’s by Drug given laetrile use cancer refusal to “terminal” patients.5 approve concluded: of Laetrile restricted to ‘terminal’ commissioner “[A]pproval to needless deaths and would lead (1) suffering among patients patients — (— U.S. was L.Ed.2d 1979 certiorari granted 4On January Rutherford. 1042].) 99 S.Ct. or 5The court of did not mention discuss reasons given by appeals commissioner. characterized as ‘terminal’ who could actually by legitimate helped and (2) benefits of therapy patients clearly susceptible legitimate who would be misled to Laetrile’s the limited therapy utility by would be able to obtain the approval program drug through who. inevitable set to administer such a leakage any system up program.” (42 39805.) Substantial evidence administrative record Fed.Reg. the conclusion reached the commissioner.6 appears support in this record case does not one with confidence that Certainly inspire advocates of would laetrile with a it to cooperate regulation restricting *11 law, “terminal” cancer In studied defiance of current Dr. patients. cure, Privitera and administered the as a cancer advised prescribed drug treatment, his discontinue conventional them warned not patients their to let know were laetrile. regular physicians they taking conclusion, In we we are not sides on emphasize taking fiercely contested medical questions as a laetrile’s regarding safety efficacy cancer Laetrile advocates be vindicated the court in of drug. may yet scientific for even this as written the National Cancer opinion, being Institute is from the Food and Administration to seeking approval Drug on test laetrile advanced cancer Institute Seeks to Test (Cancer patients. Laetrile, L.A. I, Times 1978) cols. Nor are we 1-6.) (Sept. pt. p. the decision the has made on the basis of endorsing Legislature existing scientific evidence. Whether cancer advanced cancer patients—especially who have from relief conventional patients unsuccessfully sought therapy and who are informed to the consensus of scientific fully opinion have access to laetrile is a concerning drug—should clearly question about which reasonable It differ. is not our function to persons may render scientific or Rather, we must resolve a legislative judgments. narrow Does the a bear question: reasonable challenged legislation to the achievement of the state interest relationship legitimate example, terminal,” regard 6For with “who is determining impossibility Wiernik, cited Peter commissioner Dr. H. chief clinical" branch oncology Center, National Cancer Institute’s Baltimore Cancer Research who stated “One major chemical difficulty available for terminal is that no making particular only patients one can define the term ‘terminal’ with A can be said prospectively any accuracy. terminal after he to be dies. who are ill only patients respond modern Many critically Ross, of cancer.” day management This was shared Dr. F. opinion Joseph professor at medicine of California School University of Medicine at Los Dr. Ross Angeles. stated distinction of ‘terminal’ from ‘nonterminal’ be patients may reliably “[T]he and an determined Laetrile to such assumption may given patients impunity such measures which could As deprive them.” Helene may patients therapeutic help Brown, it, executive of Cancer director Control/Los “No one put knows if and Angeles, (42 39805.) to die.” Fed.Reg. when any patient going 1707.1 does We conclude section citizens? satisfy health its safety the federal not encroach that it therefore does standard and upon constitutional right privacy.
The State Constitution does not the federal determined constitutional privacy Having next we of access to efficacy, drugs unproven encompass create such a the voters of California intended to determine whether I, our article section November 1972 when amended they the various “inalienable” of “all to include Constitution rights among the right “privacy.”7 people” To the of such intent. no evidence
There is contrary, simply 94, 533 P.2d we 222], 13 Cal.3d (1975) Davis Cal.Rptr. White the new constitutional was “the force behind provision observed moving concern, encroach accelerating a more focussed relating *12 surveillance caused increased freedom and ment on security by personal The new collection in and data society. activity contemporary provision’s of individuals some measure is to afford protection primary purpose at As (Id, 774.) threat this most modern privacy.” p. personal against observed, of the we further objectives newly adopted principal “[t]he are in statement drafted set out by proponents provision brochure,” the and included in the state’s election beginning provision “ ‘The we which then government quoted: proliferation paragraphs our traditional and data collecting threatening destroy snooping seem to be freedoms. Government compile agencies competing most extensive sets of of American citizens. dossiers Computerization it records makes to create every profiles possible “cradle-to-grave” At on the American. there are no restraints present [1Í] information effective and creates a and business. This amendment activities legal government in (Italics original.)” every ofprivacy enforceable Californian.’ at 774.) Cal.3d (13 p. election brochure argument by provision proponents essence, constitutional history’ only ‘legislative “represents, 775.) to us.” at In the absence available (Id., amendment p. create the California Constitution to that the voters in
evidence amending I, 1974) (as amendment in Nov. now 1 reworded constitutional by 7Article section inalienable rights. and have and independent, nature free are by “All people reads: possessing, life and liberty, acquiring, defending are enjoying these Among and privacy.” obtaining happiness, safety, and pursuing property, protecting intended to conduct of the sort protect engaged defendants, we have no hesitation in that section 1707.1 does not holding offend that constitutional provision.
Failure to Preserve Search and Seizure Issue Defendants contend that the trial court erred in finally denying their motion to certain evidence obtained on execution of a suppress search warrant. telephonic
Subdivision (b) section of the Penal Code provides pertinent that a authorize a officer to part magistrate may orally peace sign name on a search warrant. Defendants magistrate’s duplicate original that action under this failed here because the argue attempted provision authorized to name—a federal customs person sign magistrate’s service not a officer” under California law. special agent—was “peace that defendants are from People correctly respond precluded this issue their failure to it raising preserve by appropriate objection below. rule general questions relating “[T]he admissibility [is] of evidence will not be reviewed on in the absence of a appeal specific in the trial court on the to be timely objection ground sought urged on Code, 353; Evid. (See Welch Cal.3d (1972) § appeal. People 114-115 217, 501 P.2d v. De 225]; (1969) [104 Cal.Rptr. People Santiago 18, 22 Cal.2d 453 P.2d *13 The rule would 353].) Cal.Rptr. [76 contrary to cure the defect at trial and would deprive People opportunity the defendant on an at his trial secure in the ‘permit gamble acquittal that a conviction would be reversed on knowledge appeal.’ (Coy 471, Court 51 Cal.2d (1959) P.2d Superior 569].)” (People 21 Cal.3d (1978) 579 P.2d Rogers 1048].) Cal.Rptr. The reason for rule is well illustrated here. While a conceding not, se, federal customs a officer” under California agent per “peace Code, law Pen. subd. 830 et (see § § seq.), People suggest Nadel nevertheless have such status a Agent may acquired by process below, theAs issue was not raised had no cross-deputization. People and, therefore, occasion defendants not raise it pursue point may now.
We have considered defendants’ contentions and find them remaining to lack merit. are affirmed. conviction judgments Manuel, J., J., Mosk, J., Richardson, J., concurred.
Tobriner, BIRD, C. J. dissent. I respectfully a moment that the effective treatment of
I do not question persons a from cancer is matter of paramount importance. suffering public However, here causes and treatment we are with a disease whose dealing the medical continue to baffle community. Among physicians as to there remains what scientists themselves legitimate truly dispute as there clear an of treatment for cancer. So is no effective long program user, I each that laetrile is unsafe to the believe individual evidence a substance from a licensed who has obtain physician it to him. feels it appropriate prescribe a with fatal this makes the
Cancer is disease potentially consequences; a more decisions choice of treatment one person may important reason, I make, or her For this on his ever intimately being. touching under the state and federal both believe privacy, recognized Constitutions, a the state from choice interfering prevents person’s on the has chosen treatment treatment sole grounds person which the state considers “ineffective.” is a of as undetermined parameters. yet concept
Justice for the Court of in this case Staniforth’s opinion Appeal provides as For decent this difficult terrain I believe is available. map through reason, I herewith his reprint opinion.* * here, I Staniforth wrote which am forth the case setting Since Justice opinion courts. In 1977 the Federal through v. United has continued its way States Rutherford Drug determined that was a Administration held administrative laetrile proceedings and that not receive drug “new it should since was drug,” agency approval, proven the treatment of cancer. The case then returned to federal district “safe and effective” in *14 court, the and Drug where the set aside Federal Administration determination judge the ill interfering the from with use laetrile cancer agency by enjoined terminally 1977) 1301.) (W.D.Okla. On v. United States (Rutherford F.Supp. patients. the Court of affirmed. The court “We are Tenth Circuit noted: Appeals appeal, context, who ill can cancer are ... . what terminally considering only patients [I]n and effective’ mean as to who as ‘safe such are so recognized’ persons fatally ‘generally a there known ‘effective’ meaning stricken with disease for which is no cure? What can which as a have the absence be used standard?” United (Rutherford in of anything may 22, 1979, 1234.) the (10th 1978) F.2d States States Cir. On United Monday, January Times, Mon., (See case. Jan. Court to hear Los agreed Angeles Rutherford 22, 1979, 1.) p.
Under 1707.1,1 California Health Code it and section is a Safety sell, deliver, to misdemeanor or administer or device prescribe any drug treatment, be used in the alleviation or cure of cancer which diagnosis, has not been federal U.S.C.S. (21 approved designated agency Code, a 355) or state board & § Saf. (Health 1704). § Defendants, Privitera, Jr., doctor, James Robert a medical William Turner, David Davis, Blanche Winifred and Phyllis Agnes Disney, Leslie, Carroll Ruth were sell, convicted of a by jury conspiracy felony, laetrile, an intended for the alleviation or prescribe, drug, unapproved Code, 1; Code, cure of cancer. subd. Health & Saf. (Pen. 1707.1.) § § Davis Turner were and convicted of laetrile to used for be selling Code, alleviation or cure of cancer. & Saf. (Health 1707.1.) § We view the evidence most favorable light judgments. 3 Cal.3d 475 P.2d 649].) (People Reilly, Cal.Rptr. were defendants involved in a common distribute and plan import, laetrile referred to as (also or vitamin to cancer prescribe B-17) amygdalin Defendants Turner and Davis were the patients. and chief importers of the Defendants Leslie and as worked suppliers drug. Disney distribution network various residential areas. Dr. Privitera prescribed for cancer victims to undercover state amygdalin (or agents represented to be cancer Dr. victims). Privitera referred to Turner and Davis patients referred to Dr. Privitera for buy amygdalin; Disney patients treatment. 1Health and Code section 1707.1 Safety provides: sale, sale, sale, “The for for offering holding delivering, giving or away, prescribing medicine, or device to used in
administering treatment, compound drug, diagnosis, cure (1) alleviation or of cancer is unlawful and unless an. prohibited with application thereto has been under Section 505 of the Federal respect approved Food, and Act (2) Cosmetic or Drug 355], § USCS there has been an approved filed the board forth: application setting “(a) Full which have made reports investigations been to show whether or not such medicine, use, or is safe such drug, device and whether such compound drug, medicine, use; or device is compound effective such “(b) medicine, A list of full the articles used as of such or components drug, compound device; “(c) medicine, device; A statement full of such drug, or composition compound in, “(d) for, A full methods used facilities and used description controls manufacture, of such or or processing packing drug, medicine compound device, case of full statement of its and construction and the composition, properties of its operation; principle principles medicine, “(e) Such of such or device and of the articles used samples drug, compound medicine, as device compound or board components drug, require; may “(f) to be used for such Specimens labeling advertising drug, proposed medicine, or device.” compound *15 of that told users The defendants drug amygdalin prospective evidence or cancer. Substantial an cure for was effective treatment to and a common or of supply plan agreement supports jury finding not cure. Laetrile has been as a cancer “approved” amygdalin prescribe a agency. by designated governmental
I the Parties—Factual and Contentions Legal of Code section Health and Dr. Privitera contends California Safety to invasion of the cancer victim’s 1707.1 an unconstitutional United in violation of and use obtain guaranteed by rights amygdalin XIV, I, IV, V, VI, VII, VIII, and Constitution, and Amendments States This, Constitution, he I, 15. article sections and 7(a) California her to asserts, of or an invasion of the his patient’s right privacy, of treatment left of orthodox versus unorthodox be alone choice of cancer. As a and concommitant corollary necessary privacy Dr. Privitera that the constitutional of protection argues patient, of the cancer to utilize in a accorded victim’s right amygdalin program to nutritional extends administer drug therapy physicians willing for the cancer victim’s use. willing supply drug persons Dr. “The Privitera: constitutional Argues protection guarantees extends, therefore, not and personal liberty, only who but course nutritional therapy physician pursuing who and to the furnishes administers therapy person prescribes the essential components.” or
Dr. Privitera does general specific challenge validity the advertisement laws to the extent amygda- prohibit regulatory they or Code, 1714); cure & Saf. § lin as a for cancer (Health require law and in accordance with state labeled regulations amygdalin on manufactur- Code, standards 26463); Saf. or & § (Health impose adulteration to insure prevent quality ing packing amygdalin members deterioration, or the the sale amygdalin prohibition other cancer for the treating by persons public purpose general Code, 26400 et & (Health & Saf. § than licensed (Health seq.). physicians Code, 1704, 26670, 1707.1, 1709; Code, tit." Saf. Admin. Cal. §§ 10400.1.) § laws, to those
Rather, Dr. is directed Privitera’s specifically challenge licensed convicted; he is the one of which insofar they duly prohibit *16 from to cancer and which physician administering amygdalin patients its sale to either licensed or who have prohibit physicians persons obtained a Code, from licensed & Saf. (Health prescriptions physician. 1700-1721.) §§ Privitera, to Dr. this of choice of medical treatment is a
According fundamental of the individual and this regulations limiting interests”; state may justified only by “compelling legislative enactments which seek to or control areas such regulate fundamental must be drawn to rights protect only legitimate narrowly state interests at stake. here or is a known substance as drug supplied prescribed specific laetrile, also known and as also known as vitamin B-17.
amygdalin, is a been substance has Amygdalin by-product apricot pits. as to for the its treatment of subject widespread public dispute efficacy medicine, cancer. Orthodox as the American Cancer represented it in the area nostrums. Its their Society, places proponents vaiy claims from that a cure cancer or as nutritional aid simply causing have a better better emotional gain weight, appetite, nontoxic; outlook. It is conceded that it is does not generally amygdalin toxic, fall within the are ban which habit general drugs forming, addictive, or otherwise distort Conventional medicine reality. regards “evidence,” of the curative effect of as anecdotal in “proof,” amygdalin nature and contends the has never been established scientific drug to have effect whatsoever either the cure or methodology upon retardation cancer and cons of the growth. Despite pros experts medicine, field and others from nonmedical fields side on taking issue, this relief, cancer victims numbers have large sought nature, Where, whatever its which available from the use drug. as in Mexico and in West is available doctors Germany, drug through clinics, victims, travel, cancer able to seek out and obtain the treatment.
Dr. Privitera out that cancer victims have points many investigated evaluated merits of radiation therapy chemotherapy surgery, the aid of medical advice and have made the competent personal highly decision from benefits such not sufficient therapy [that] justify [are] which debilitation, risks include and accelerated death disfigurement, treatment; for this reason have chosen to seek aas other amygdalin cancer victims have been advised that their condition their hopeless, death, case is terminal and as a last resort before certain seek amygdalin. *17 victims, conceded cancer Dr. Privitera contends competent many adults, a food substance seek and use amygdalin responsible (cachexia) ameliorate wasting away body horrifying physical for its Thus seek which cancer. only amygdalin accompanies they benefits, nutritional for its known cancer curative but also possible will cure or Cancer cannot be certain either benefits. victims amygdalin anecdotal, believe, based control cancer but personal they upon relief from the terrible pain, drug provides experience approach, malaise, the loss which mark the mental emotional depression weight of their disease. progression contentions, assert, Dr. not a
The Privitera’s single contrary People medical of California teaches accredited school State amygdalin use or of cancer. be effective in controlling curing might Further.the is of as a form of nutritional by officially regarded amygdalin therapy Association, Health, the California Medical State of Department to be Cancer and a block of National Institute practicing physicians, great of cancer. of value whatsoever in the no controlling curing section 1707.1 of the Health Dr. Privitera contends specifically It is of of individual Code unconstitutional. a denial one is aspect Safety of Amend- the due clause the Fourteenth “liberty” protected by process ment. asserts, or “a of he has a right guarantee patient, “privacy” This is the individual
certain areas or zones right privacy.” certain kinds of decisions. very making important independence be the decision be nature of act to relationship, performed, “the made, It state right precludes unjustified presence. action, from and belief
individual be free in experience thought, I The Private U. (Kurland, 1976) (Autumn governmental compulsion.” It is that voiced Justice Brandeis in his dissent Chic. 7.) right by Magazine States, 944, 956, L.Ed. 48 v. United U.S. Olmstead alone,” 564, 572, 66 “the “the most A.L.R. let S.Ct. right right 376] men.” civilized valued by articulated as constitutional was first
Historically privacy Connecticut, 85 S.Ct. U.S. 479 L.Ed.2d in Griswold the use of statute unconstitutional a a decision 1678], prohibiting holding existence, innate However, the every recognition contraceptives. older than the Bill is older zone of Rights, human being, with the nature than the concern older state’s our than parties, political It in the nature of received cancer-ridden to be treatment patients. that such exists. man dimension, has embraced been now constitutional
This principle, In re 2 Cal.3d of situations.2 in a (See decisions Lifschutz, variety many *18 557,. Roe 432, 829, 1], 467 P.2d A.L.R.3d 415, fn. 12 44 Cal.Rptr. [85 705, 147, 175-177, 93 Wade, S.Ct. 113, 151-153 L.Ed.2d 410 U.S. v. [35 the is This when doctor-patient relationship 726].) concept, placed to the of his advice to decide physician, “right independently, 589, Roe, v. 429 U.S. (Whalen use needed medication.” and to acquire Bolton, 876, 64, 869, Doe v. 410 U.S. 75, 97 S.Ct. 878]; L.Ed.2d 603 [51 215-216, 739, In re 201, 93 S.Ct. 179, 750].) L.Ed.2d 197 Lifschutz, [35 415, 431, 432, makes 2 concerning Cal.3d insight profound “Indeed, valued individual the decision’s concern for Griswold: aspects from the dehumanization in man aid protecting ultimately may environment.” of an technological everencroaching fact, of this must, the existence concede, the as The they People of individual unmeasured concept yet judicially expanding California has broad However, the State of contend they privacy. its within borders of conduct to and enforce standards establish power Within its a vital its relative health. This is police power. aspect of health state delivery ambit regulate authority L,Ed. 829, 442, 74 347 U.S. 449 v. Board services. Regents, [98 (Barsky Nunn, 460, 650, 469 P.2d 813].) v. 46 Cal.2d S.Ct. 654]; [296 People zone the invasion of authorizes This broad doctor-patient premise certain doctor the state to species prescribing prohibit privacy by 174 25 v. Division Narcotic (Blinder Enforcement, Cal.App.3d drugs. Roe, 429 U.S. v. The Whalen 635].) People point Cal.Rptr. [101 869, Adult 75, and Paris 603, 64, 97 S.Ct. 589, 878], L.Ed.2d fn. 461-463, S.Ct. Slaton, 49, 446, 65, 67 L.Ed.2d I 413 U.S. Theatre of this broad 2628], position. support in the first
The concede exercise police power, depends People be an articulated interest in instance regulated activity upon public second, the means used must necessary reasonably and Alan U. The To Be Alone 2In Morris L. Ernst’s Schwartz’s Left Privacy: Right and broad of this doctrine is documented. Samuel D. Warren (1962), sweep history Brandéis, (1890) 4 Harv. “. . . it and Louis D. L. Rev. state: Right Privacy found from time to time to define anew the nature and necessary has been exact extent such protection.” U.S. of that (Goldblatt Hempstead, public purpose. accomplishment 130, 133-135, 82 S.Ct. 990].) L.Ed.2d 595 [8 Code section defense of Health and At the heart of the Safety People’s declared,3 that and accurate 1707.1 early Legislature premise, death, the likelihood of of cancer reduces prolongs materially diagnosis life; are made to where false or useful misleading representations falsities, and die of such numbers needlessly large rely upon public, cancer. contend the California Legislature enacting statutory People are more
scheme made this Ineffective cancer remedies finding: implicit hazardous to the than the state sanctioned alternatives. & (Health *19 Code, Saf. 1700.) § court, this this does not
Concerning efficacy amygdalin, opinion, enter that The effectiveness of as a cure for or as a cancer fray. amygdalin benefits, not, aid nutritional with health as a matter of general giving law, an when the issue is a violation of Health and Code charge Safety section 1707.1. The issue here is human Can the informed liberty. cancer-ridden limited in be choice of treatment received from a patient and 3Health Code section Safety provides: care, treatment or cure of from cancer is of of one or another of the forms of “The effective diagnosis, persons suffering Vital indicates that statistics public importance. approximately percent paramount deaths in the the total United States result from annually cancer, cancer. It is established that accurate and forms of early diagnosis many followed of methods of treatment which are by prompt application scientifically proven, either the useful reduces the likelihood of death from cancer or materially may materially prolong life of individuals therefrom. suffering education, intensive there is a lack of and “Despite campaigns public adequate methods for the accurate information with among public presently proven respect treatment, and cure of cancer. Various in this State have diagnosis, persons represented medicines, methods, skills, and continue to techniques, themselves represent possessing treatment, cancer, which or devices for the effective or cure of representations diagnosis, of the on are with the result that numbers misleading large public, relying public, cancer, of the such die of and substantial amounts savings representations, needlessly are wasted. individuals and families on such representations needlessly relying is, therefore, afforded full and accurate “It interest that be public public treatment, and cure of as to the facilities and methods for the diagnosis, knowledge means for and testing cancer available in this State and that to that end there be provided remedies, devices, or the value or lack thereof of cancer alleged drugs, investigating compounds, misrepresentation found, from of the facts public informing public protecting in such matters. or cure of “The scientific research to determine cause importance continuing due cancer is the or and the shall administer this recognized, regard department chapter clinics, of bona fide scientific research and the clinical testing importance hospitals, institutions of new or drugs compounds.” similar
state licensed to “state sanctioned alternatives”?4 To resolve physician these contentions we must the nature of contrapoised carefully analyze the right protected.
H The Patient’s Right Privacy of Dr. Privitera to Health and Code section challenge Safety itself, 1707.1 resolves into two and distinct areas upon analysis, separate of claimed constitutional there is the rights; right patient treatment, choose or his or her unorthodox, own or orthodox reject or the state. The second contention is bifaceted: approved unapproved by Dr. Privitera asserts a derivative in stature to that of his (1) right—equal the doctor’s (2) medicine patient, independent practice medicine, and to use without unreason- generally prescribe procedures, able restrictions. government
We examine determine first the is of such fundamental nature its free exercise may impinged upon forbidden such state interest as be a interest.” only by may “compelling
The “fundamental” of nature this derives from its source. It flows right from the nature of man. Justice in Olmstead v. United Brandeis very States, 438, 277 944, 956, 564, U.S. 478 L.Ed. 48 S.Ct. 572], [72 stated: “The makers of our Constitution undertook to secure conditions favorable to the of pursuit happiness. They recognized significance nature, man’s of his and of knew his intellect. that spiritual feelings They of the and satisfactions of life are to be found in only part pain, pleasure beliefs, material Americans in their their things. They sought protect their emotions and their sensations. thoughts, They conferred, against to be let alone—the most government, right comprehensive rights and the valued civilized most men. To that right protect right, every intrusion unjustifiable government upon individual, whatever the means must be deemed a violation employed, . ...” (Italics added.) Cardozo in v. New York 211 Judge Society Hospital, Schloendorff
N.Y. 125 N.E. at human of adult stated: page “Every being [105 93] and sound mind has a to determine what shall be done with years right his own body;....” Privitera, 39
4People Cal.App.3d Supp. Cal.Rptr. 151]. wise; not it own is restricted to control one’s body right Nor of medical treatment. is this the “foolish” refusal includes right economic, limited in its segment political, any single recognition Brandéis’ most In Justice or social commenting upon thought spectrum. alone, now Justice to be left Chief that valued Burger, right rights, Col. 331 President & Directors his dissent in Georgetown Application in this utterance at stated: F.2d “Nothing suggests page these as to Brandéis an individual Justice possessed rights only thought emotions, beliefs, reasonable valid sensible thoughts, well-founded foolish, I he intended to include sensations. great many suggest conform, and even absurd ideas which do such as unreasonable even at risk.” medical treatment great refusing basis, reference to a constitutional to choose
Without specific In what be a suicidal medical course has been Erickson v. may upheld. a New Misc.2d N.Y.S.2d York court Dilgard, 706] sustained the Jehovah’s Witness’ a needed blood unwilling objection of death. The court there at “. . . it transfusion risk said 706: despite page the individual who of a medical decision who has the final subject in a and that this must be so which say necessarily system government individual furtherance gives greatest possible protection of his own desires.”
For we look to the heart of this of choice of medical analogy very or not to a child. In the case of beget beget procedures, Connecticut, 479 the Griswold 381 U.S. Court held Supreme a Connecticut statute the use of unconstitutional prohibiting contracep tives. Griswold a series of United States Court cases Following have to ascertain the boundaries attempted aspect privacy. However,
outer limits have not
been determined.
it is made clear
yet
by
interference with
decision that
decisions
unjustified government
personal
1,
“. . .
to
v.
388 U.S.
12 (1967);
relating
marriage, Loving
Virginia,
Oklahoma,
535,
Skinner v.
316 U.S.
541-542
contra
(1942);
procreation,
Baird,
id.,
453-454;
460,
Eisenstadt v.
405 U.S. at
at
463-465
ception,
J.,
in
Prince v.
result);
Massachu
(White,
concurring
family relationships,
setts,
education,
child
158,
321
166
and
and
Pierce v.
U.S.
(1944);
rearing
Nebraska,
Sisters,
510,
268 U.S.
535
v.
(1925),
Society
Meyer
supra”
Wade,
113,
147, 177,
U.S.
152-153
L.Ed.2d
93 S.Ct.
v.
410
(Roe
supra,
[35
705,
violate this
726])
concept.
Wade,
to
Roe v. rights specifically supra, The United States one’s own medical treatment. determine Supreme 720 the constitutional was
Court held that mother’s broad right decision to her to her whether terminate enough encompass pregnancy trimester of Said the court at before the end first pregnancy. page the 163 L.Ed.2d at “With to State’s and respect p. important [35 182]: the interest the health mother point, legitimate ‘compelling’ end of medical at the the knowledge, approximately light present 113, Wade, 147, 163 L.Ed.2d v. 410 U.S. first trimester.” (Roe supra, [35 705, 182, 93 731].) S.Ct. Bolton, case, 410
In Doe v. U.S. 179 United the companion supra, States Court held statutes abortions be requiring Supreme conducted in or accredited hospitals, requiring interposition hospitals, and of a abortion committee thus abortions those limiting hospital In circumstances was unconstitutional. woman’s vindicating care, choice medical Court stated: “The woman’s Supreme care receive medical in accordance with her licensed best physician’s it to administer are physician’s right judgment substantially Bolton, v. limited overview.” 410 (Doe statutorily imposed supra, by 216, 179, 201, 739, U.S. L.Ed.2d S.Ct. 750].) conclusion, To its Court examined the role of the Supreme support State, he “If a is licensed licensed saying: physician by physician, the State as clinical exercising recognized capable acceptable by this, his If he fails censure professional judgment. deprivation license are available remedies. Required acquiescence by copractitioners with a needs and on has no rational connection infringes patient’s unduly will know when attending physician physician’s practice. situation, doubtful the need for assurance is advisable—the a consultation one, have decision is a delicate like. the medical when Physicians and benefit for routine know its usefulness followed this historically must It is still true all concerned. upon today placed ‘[r]eliance license, his issued an assurance judge authority competent given that he in that qualifica- physician] possesses requisite respect, [the 129 U.S. 122-123 See United (1889). v. tions.’ Dent West Virginia, Bolton, Vuitch, 71.” 410 U.S. U.S. at (Doe States v. 201, 217, S.Ct. 751].) 199-200 L.Ed.2d Roe, 429 U.S. the United States In Whalen *22 the New York with to Court considered statutory requirements respect legitimate” drugs. requirement “dangerous, prescriptions that of notification. court balanced the invasion was question involved and concluded that zone against public’s right privacy
721 to the involved the statutes were a respect particular type drugs reasonable exercise of the state’s broad In so police power. holding court discussed the of an individual to choice of treatment right saying: “Nor can it be said that individual has been of the to any deprived right decide with the advice of his to and to independently, physician, acquire use needed medication. . . . Within limits which do not dosage appellees use, the decision to or to is left to the challenge, prescribe, entirely Roe, and the 589, v. 429 603 U.S. (Whalen physician patient.” [51 64, 75-76, 869, L.Ed.2d 97 S.Ct. 878].) the doctor’s to Whalen out: “The
Concerning “right practice” points doctors that the statute their appellee argue separately impairs medicine free of unwarranted If state interference. the doctors’ practice claim has reference to the of the 1972 statute on their own impact it is frivolous. For even the statute procedures, clearly prior required doctor to a written name address prepare prescription identifying of the and the of the To the extent that patient dosage prescribed drug. their claim has that the concern about possibility patients’ reference disclosure medication, induce them to needed the doctors’ claim may refuse is derivative than, no Our from, stronger patients’. therefore of their claim therefore of the rejection doctors’ as well.” (Italics disposes added; Roe, Whalen v. 589, 429 64, 76, U.S. 604 L.Ed.2d 97 [51 S.Ct. 879].) v. Intern., Carey Services 431 U.S. 678 Populations L.Ed.2d [52
S.Ct. 2010], examines the question involving availability contracep- tives minors. The Court held the in matters Supreme extends to minors as well affecting procreation as adults.
The California Court has set forth aas “postulate” “axiomatic” the to choose one’s own “lawful” treatment. In Cobbs Grant, 8 Cal.3d at court, 502 P.2d 1], page Cal.Rptr. to secure the informed consent determining duty physician treatment, said: we several “Preliminarily employ . . . The second that a of adult and in sound postulates. person years mind has the in the exercise of control over his own right, body, determine whether or not to submit to lawful medical treatment.”
Aden held Younger, 535], Cal.App.3d Cal.Rptr. unconstitutional of Welfare and Institutions Code section provisions 5326.4 substantive review a medical committee aof requiring consent to choice of electro-shock treat- voluntary, competent patient’s *23 to ment. It was an of the right privacy. unjustified infringement patient’s This court stated at 684: page insured,
“Where there is no informed consent is justifica- adequately tion for to infringing right selecting upon patient’s privacy which are treatment. The state has varied interests consenting ECT, where served but these interests are not served regulation health, and his are the best patient patient’s physician judges and welfare. safety
“. . . need which exists for the competent Any possible voluntary cannot in the face of the serious infringement prevail Wade, 410 U.S. Roe v. as patient’s right privacy guaranteed by supra, Bolton, 410 U.S. and Doe v. 179.” (Aden Younger, supra, supra, 662, 684.) Cal.App.3d its
This
reached
quintes
right-of-choice-of-medical-treatment
concept
New
sence in the
723 case, interest of external that no compelling instant diametrically opposite unendurable, . . . (Matter to endure Karen could the State compel 647, A.2d 663].) N.J. 10 Quinlan, supra, [355 Ill Doctor’s Zone Privacy and distinct asserts a constitutionally protected
Dr. Privitera separate whether treat zone patients prescribe, privacy—to right—a interference. from state mode—free orthodox unjustified existence Roe, 589, a v. 429 U.S. premise Whalen accepts supra, with the to choose of the individual of the independently right medication. Said not to to use or use of his advice particular physician it “Nor can be said L.Ed.2d at Court at p. page 75]: Supreme to decide been of the individual has independent- right deprived needed and to use with the advice his acquire physician, ly, to freedom to However, the doctor’s medication.” right respect 589, Roe, we treat, sick, 429 U.S. in Whalen v. to minister supra, nptéd the “doctors’ Court’s determination heretofore have Supreme than, from, derivative and therefore no claim is stronger patients’.” Bolton, however, Doe U.S. speaks specifically a constitutional care. Bolton involved doctor’s administer medical right state licensed defective statute the consent of two physicians ly requiring could be doctor an abortion other than the own before patient’s members of the as well of three as advance hospital approval performed this statute where the to be staff abortion was Concerning performed. care in to receive medical Court said: “The woman’s right best
accordance with her licensed physician’s judgment limited this it are to administer statutorily substantially physician’s right Bolton, 179, 197 L.Ed.2d overview.” 410 U.S. (Doe imposed 93 S.Ct. added.) italics 750]; treat, not Dr. Privitera asserts an right additionally independent choice, first without from or his derived measured right patient’s from govern- drug prescribed obtaining approval procedure invades 1707.1 He Code section mental board. Health argues Safety asserted the doctor’s as in the patient, right. Again, test, nature and select first examined to determine its must be thereby will interference to which state put. degree scrutiny the state—the found must be balanced interest against public protected.
Dr. Privitera’s in relation to the has been viewed right, patient, as a of economic interest rather than as “fundamen- traditionally species If a rational basis found to an tal” akin to was right. support encroachment, the statute was sustained.
While a dispassionate reading licensing requirements physician’s raises some the total question concerning rationality licensing scheme, such standards are as reasonable and necessaiy generally upheld means of health. protecting public
The more recent cases hint at the more in the doctor. It profound is There exists in the doctor licensed to medicine a postulated: practice nature, ill-defined, to treat and to treat constitutional right, yet by unorthodox modalities—as the state board—an yet unapproved by informed consenting patient. 217, Bolton, 179, 201, L.Ed.2d 93 S.Ct.
Doe v. 410 U.S. if a is licensed the state he is states 751], recognized by physician by If fails clinical he the state as of expressing acceptable judgment. capable this, license are remedies censure and of his deprivation professional on the assurance his available and “reliance must be given by placed license . . . that he requisite qualifications.” possesses Wade, 183, 93 S.Ct. 410 U.S. L.Ed.2d Roe the first states the termination 732], of.pregnancy during concerning with his trimester: “. . . the consultation patient, attending physician, determine, State, that, medical in his without regulation by free be terminated.” (Italics added.) should pregnancy judgment, patient’s To Reason, the doctor’s on based history, experience, supports premise. before state advising—prescribing-administering approval require prior for an informed treatment —a new modality consenting patient best to make medical innovation qualified person suppress clinician, doctor, is at the cutting edge treating progress. medical knowledge. orthodox “state sanctioned” methods doctor to use
To only require invite a for variance is to of criminal of treatment under threat penalty in California of Soviet experience “Lysenkoism.”5 repetition treat, of a licensed must mention that doctors requirement prescribe, “state alternatives” of medical within sanctioned raises spector statism, best, at It is at Brother worst. Big stagnation paternalistic free, A alternatives has been made. medical orthodoxy progress has an enormous stake in recognizing progressive society protecting this right physician.6 D. 5Soviet T. controversial dictator “communistic” geneticist Lysenko, biology the Stalin stultified the at
during science U.S.S.R. for least a period, genetics alternative,” He the “state sanctioned the curious idea that generation. imposed of an characteristics could be environmentally acquired organism transmitted *26 Thus, inheritance. of the Stalinist offspring through concept ideological conformity genetics in branch of Soviet science. politically implanted important paralyzed alarmist, 6Lest the reader are these without relevance to here and conclusions suspect now, reference is made and Drug Evidence and Regulation Innovation—Empirical (1976). G. Grabowski Policy Options, by Henry This is a of studies made—cost summary benefit of the versus effects of the 1962 amendment which the analysis clothed Federal Administration with the new to test for their “effectiveness” Drug before authority drugs general and use. permitting prescription One was that Sam Peltzman. study surveyed He researched the effect of the 1962 by effect, amendment on innovation: “In . . the rate drug Peltzman’s . that of suggests innovation in the is more halved post-amendment than as a result period amendments.” the Did Federal Administration out Drug weed ineffective Peltz- effectively drugs? . man’s shows: “. . study of evaluations that the analysis medical by experts suggests of ineffective has remained same proportion drugs the in the roughly pre-1962 Given that post-1962 periods. the rate new was in introductions more than halved the drug of post-amendment period, his a analysis that decline took in suggests large place therefore (Italics added.) drugs." effective The conclusion reached by Professor Grabowski: “A consistent is that finding has had a regulation effect on the significant rate innovation. While each of negative the individual studies has taken would seem to shortcomings, together they provide considerable for the that support has been one of the hypothesis regulation principal factors responsible the observed in decline innovation.” Professor Grabowski’s “An the shows: indication of the decline in study change discovery of new chemical entities U.S. firms—an decline development initial by more from than one-third of the worldwide in the 1962 introductions before year Food, amendments to the Act to the Drug, Cosmetic less than total in one-quarter shows, . . . and as a unfortunately, Professor Grabowski continued of U.S. erosion thereafter. We leadership have reached where innovations based discoveries point on firms and U.S. institutions by constitute less than of worldwide one-sixth introductions chemical new entities . . . and as share of have exports pharmaceuticals exports U.S. declined one-third by since 1950s.” thp in Decline innovation is bad yet has not been enhanced. enough public’s safety According Professor Grabowski: “One of the bitter ironies this situation that the 1962 amendments were an alarm over the of new spurred fears by safety drugs—by created thalidomide incident. by lies in the fact that the 1962 amendments irony are off market new are keeping safer than the would drugs drugs they replace. William Wardell’s Professor in the introduction of new study lags drugs cites, one States as on United the U.S. example, five-year appearance delay it market of If had been benzodiazepine available the United States as it hypnotic.
IV
Privacy—
Right of
I,
Constitution
Article
Section
California
of the federal
Thus far we have considered only
specific guarantees
formed therefrom
bill of
emanations
concluding
rights
“
1707.1. However:
fundamental
are encroached
section
by
‘[I]n
rights
...
all
fundamental civil liberties—which includes
area of
protections
sit . . .
the California Declaration
only
Rights—we
subject
that our
guarantees
interpretations may
qualification
restrict.
In such
under
the federal charter.
accorded the national citizenry
and the full
our first referent is California law
constitutional adjudication,
their due.
have come to
Californians
expect
rights
panoply
Court
of the United States
decisions
defining
Accordingly,
to be afforded
fundamental
áre
respectful
persuasive authority
rights
consideration,
when
California courts
but are to be followed
they
only
California
than is
no less individual
guaranteed
provide
protection
”
557 P.2d
Priest,
18 Cal.3d
law.’
(Serrano
Cal.Rptr.
*27
943, 951,
4
14 Cal.3d
fn.
v.
Cal.Rptr.
Longwill,
[123
quoting People
929]
101,
Disbrow,
114-115
297,
v.
16 Cal.3d
538
also
P.2d 753].) (See
People
929,
Norman,
360,
v.
14 Cal.3d
939
first section certain “All are establishes inalienable rights: people nature free and and have inalienable these rights. Among independent are and and life and enjoying defending acquiring, liberty, possessing, and protecting property, pursuing obtaining safety, happiness, added.) “The constitution does not (Italics privacy.” explicitly [federal] Wade, 113, mention v. 410 U.S. (Roe any right privacy.” supra, 147, 176, 705, L.Ed.2d 93 S.Ct. Neither did the 726].) California However, 1972, Constitution. November voters California “[i]n I, amended article section 1 of our state Constitution to specifically include the various ‘inalienable’ of ‘all among rights people’ ” Davis, v. 13 Cal.3d 533 P.2d (White ‘privacy.’ Cal.Rptr. 222].)
The California Court first addressed the significance Davis, new White 13 Cal.3d 773-776. In that provision case asserted certain surveillance and data- complaint government activities students’ teachers’ constitutional gathering abridged In entered of a privacy. reversing judgment upon sustaining general demurrer, the court concluded the activities did fall within the challenged I, of article section 1. The court no as to the aegis opinion “intimate[d] resolution of the ultimate constitutional after trial” (White question Davis, 13 Cal.3d 776), did not to sketch “the full purport *28 contours of the new constitutional at Neverthe (Id., 773.) provision.” p.
less, we are aided its observations and by analysis.
“The are set out in principal objectives newly adopted provision a statement drafted of the and included in by proponents provision the state’s election 774.) brochure.” at This statement (Id., p. represents, essence, in of the constitutional amendment only “legislative histoiy” available at (id., and “California have 775), decisions p. long recognized election such brochure as an aid propriety resorting arguments in and constitutional measures amendments construing legislative adopt ed to a vote at fn. (Id., 11.) pursuant people.” Davis,
After review of the in 13 Cal.3d ballot statements White 757, the Court concluded: “Although general concept relates, course, to an broad and diverse field of privacy enormously belief, action and force behind the new constitution-
personal moving concern, al was a more focussed relating provision privacy encroachment on freedom and caused security accelerating personal increased surveillance data collection activity contemporary individuals The new afford society. provision’s primary purpose modern threat to some measure of this most against personal protection at 773-774.) (Id., privacy.” pp. that here relied Privitera do not fall within “more rights upon by Davis, 757; concern” of 13 Cal.3d but
focused White privacy field of rather relates to the broad and diverse personal “enormously here not seek to surveil or collect data belief and action.” state does It to circumscribe an even more about laetrile users or distributors. seeks interest, which is but an “outward profound compelling right consciousness,” manifestation of the inward domain of the to be right left alone.
To find the intent of the State of California legislative people I, the amendment to article section we look to the language enacting data collection into the election brochure which extends beyond broader area of freedom of action and belief. The argument personal favor of the amendment stated: alone. It is a fundamental and “The right privacy left homes, families, our interest. It our our our thoughts,
compelling protects communion, emotions, our our freedom of our personalities, expressions, and our freedom to associate with the we choose. people American and essential
“The is an heritage important Fourth, First, Third, Fifth fundamental rights guaranteed should be Ninth Amendments to the U.S. Constitution. This added.) need.” (Italics when there is public abridged only compelling *29 “The further stated rebuttal): of the amendment (in proponents tp It is much more than is ‘unnecessary wordage.’ right privacy our not now fundamental in free is by Privacy guaranteed society. court will extend various State This amendment Constitution. simple of our (Italics on to insure basic decisions rights.” protection privacy added.) the exact
This
thoughts—uses
history” closely parallels
“legislative
in
v. United
dissent
Olmstead
Justice Brandéis in his
words—of
prescient
States,
Like recognized right people It free in the of action. is to be left alone—the right sphere private homes, families, our our It “our our “fundamental.” thoughts, protects ,”8 . emotions, our . . our personalities expressions, intent” derived from the Based “legislative express language upon California the election brochure we of constitutional conclude right, dimension, is not a shield threats to was enacted. This against right just surveillance and freedom modem by data-collecting personal posed a fundamen- activities. This encompasses state-protected tal of the cancer to choose or his or and interest compelling reject her own medical treatment on the advice of a licensed medical doctor. need.
This
can be
where there is
compelling
abridged only
cautioned:
should
if he had this
Brandeis insightfully
“Experience
7As
case mind.
when the
are
on
government’s purposes
teach us to be most
our guard
protect liberty
invasion of their
Men born
are
alert to repel
liberty by
beneficent.
to freedom
naturally
encroachment
men
lurk in insidious
evil-minded rulers.
greatest dangers
liberty
States,
zeal,
(Olmstead
v. United
understanding.”
but without
well-meaning
Brandeis, J.,
438, 479
dis.)
572-573];
L.Ed.
48 S.Ct.
U.S.
1905)
(George Routledge
John Stuart Mill
his classic work On Liberty
8Philosopher
enunciated
to be left alone:
sets forth the
for this recently
philosophic underpinnings
individual,
society,
has,
ais
action in which
as
sphere
distinguishedfrom
“[T]here
if
any,
interest;
and
an indirect
conduct
person’s
all
only
comprehending
portion of
life
others,
with their
and
which
or
it also
himself,
only
free, voluntary,
only
if
affects
affects
himself, I mean
and in the
consent
When I
directly,
undeceived
and
only
participation.
say
instance;
himself;
This,
himself,
. . .
first
for whatever affects
affect others through
may
then,
first, the inward domain of
is the
of human
It comprises,
appropriate region
liberty.
consciousness;
sense;
conscience,
in the most comprehensive
liberty
demanding liberty
sentiment on all
absolute freedom of
thought
feeling;
subjects,
opinion
scientific, moral,
. . .
or
or
Secondly,
principle
practical
speculative,
theological.
of our life to suit our own
of tastes
requires liberty
framing
plan
pursuits;
like,
without
as we
follow:
doing
consequences
may
to such
character:
subject
fellow-creatures,
them,
we do does not harm
even
from our
so
as what
long
impediment
foolish,
. .
.
wrong.
should think our conduct
or
though they
perverse,
name,
our
that of
own
good
“. . . The
freedom which deserves the
pursuing
only
theirs, or
their
others of
impede
own
so
as we do not
long
our
way,
attempt
deprive
health, whether
his own
bodily,
efforts to obtain it. Each is the
proper guardian
other to live
each
as seems
suffering
mental and
Mankind are greater gainers by
spiritual.
themselves,
to the rest.”
live as seems good
than
each to
compelling
good
mind,
himself,
the individual
over
own
Mill concludes “over
his
body
13-18.)
sovereign.” (Pp.
*30
V
The Nature
the State’s Interest
of
We have established this
Dr.
and
Privitera’s
premise:
patient’s
of
of
are
such
a
state interest
rights
magnitude only
compelling
can
intrusion in the
treatment
We now
justify
patient-doctor
setting.
the
consider
of that
Does
state interest.
Health and
Code
strength
Safety
section 1707.1
a
serve
state interest which
the
overrides
compelling
rights
Indeed,
so
state
found?9
has a
interest in
medical
profound
maintaining
health,
standards and in
life. This
protecting
justifies
testing
of doctors and the
on
limits
of medical advice
licensing
giving
of
qualified practitioners.
regulation
licensing
pharmaceuticals,
for
so
other
of
are
requirements
pharmacists
dispensers
drugs
authorized. Harm to others
well
is
foreseeable. It is
settled
readily
state has broad
in
of certain
police powers
administering
regulating
of
the health
Robinson v.
types
drugs by
(See
professions.
California,
660,
758,
1417,
U.S.
664-665
761-762,
L.Ed.2d
82 S.Ct.
1419-1420];
Martinson,
ex rel.
Minnesota
v.
256 U.S.
L.Ed.
Whipple
Roe,
S.Ct.
426]; Whalen
731 such for with a of furnish the state the doctor to every prescription copy of the to decide a did not right deprive unconstitutionally person drugs to use to of his with the advice acquire physician independently needed medication. Martinson, ex 256 45
In Minnesota rel. v. U.S. Whipple supra, 819, 822, this L.Ed. S.Ct. Court reiterated 426], when California a statute which premise examining regulated morphine can of of “There be no in the state stating: question authority administration, sale, to exercise of its police power regulate prescrip- in tion and such are named use dangerous drugs, habit-forming exercise this so manifest the interest statute. to is right power welfare, health that it to enter a is unnecessary upon public of it that it to be discussion is too established beyond saying firmly called in successfully question.” In Blinder v. Narcotic Division Enforcement, supra, Cal.App.3d
174, 181, to the State California regulate authority prescription narcotic, of a was vindicated. a doctor habit forming, drug dangerous the use of methadone as a Plaintiff physician sought prescribe for the treatment of narcotic addiction. and effective method necessary Blinder for treatment of addicts The statutes Dr. challenged provided at time and limited use of certain places specified periods in the The court in held methadone treatment of other diseases. Blinder limitations of methadone treatment upon prescription Code, were 11395) addicts & Saf. 11391 and an (Health §§ appropriate the state and did constitute a denial of exercise police power unusual cruel and law or constitute equal protection punishment. interference, without state of the doctor Concerning right practice at Blinder Division Narcotic Enforcement, Cal.App.3d moreover, established, that “It states: well right page although medicine, other like the profession, practice practice free of not be exercised valuable [citation], may property has reasonable restrictions. ‘The state power regulate clearly health, and welfare.’ in the interest of safety professions public [Cita Robinson, Blinder, as in as in It should noted in Whipple, tions.]” Roe, broad are to this Whalen police power drugs subject narcotic, are habit which are sense they dangerous drugs drugs misuse “concerns others.” or toxic. Their use or forming, hallucinatory to be harmless not in this It is conceded Laetrile is class. drug. generally cancer. Its evil lies “ineffective” treatment of its alleged *32 The case sole submitted for the that the state has authority proposition the under its the interfere in police power doctor-patient where Privitera, the is v. is relationship drug prescribed amygdalin People 55 39 where the same Dr. 151], Privitera Cal.App.3d Supp. Cal.Rptr. was in the Court of Los of series charged Municipal Angeles misdemeanor 1707.1 violations section as the (here substantive charged crime, the of a The there trial court sustained object felony conspiracy). defendant’s demurrer on the section 1707.1 was unconstitutional. ground Division of the Court of Los Appellate Superior Angeles County overbroad, reversed denied section 1707.1 was or unreason- arbitraiy able. It was within the constitutional power Legislature prohibit the cancer treatment. For its for the amygdalin prescription authority the relied cases we cite which warrant division state appellate upon control, distribution, area in the intervention use of doctor-patient other narcotics and drugs. dangerous court the
The Privitera examined the procedure imposed by Legisla- ture for the administrative determination of whether the is prior drug thereof, safe and For as effective. Privitera on relies recognized approval the United States Court v. Westcott & Weinberger Hynson, Inc., 609, 217, 412 2469, U.S. 93 S.Ct. L.Ed.2d Dunning, held in which the of new 2478], passing safety efficacy upon drugs, strict scientific standards must be “anecdotal and not evidence employed that doctors ‘believe’ in the of a the indicating efficacy drug.” Concerning of whether the scientific and medical are in authorities problem dispute “ the division ‘Where stated: there is a difference of appellate genuine medical on the whether a is opinion among question drug experts disease, as safe for treatment of a it recognized generally particular must be concluded that is not safe for recognized generally drug the use in the v. treatment of that States Article disease.’ (United Drug, Privitera, etc. 1968) 294 (N.D.Ga. 1311.)” (People F.Supp. 51.) Cal.App.3d Supp. division examined but appellate question found the state interest of such as to authorize magnitude all treatment cancer modalities prohibition physicians Privitera, other than “state Said sanctioned alternatives.” People “However, 52: California Cal.App.3d Supp. Legislature, cancer made scheme of enacting statutory regulations, implicit cancer but remedies are more hazardous to alleged finding ineffective than alternatives. such state-sanctioned We believe finding One a cure be reasonable. but who to avoid seeks desperate necessary because it radiation it because necessary disfiguring, surgery toxic, his it is because might chemotherapy necessary debilitating both harmless to be are which substances represented extremity employ ill, these such seriously and curative. Knowing propensity its from citizens exercised its police power protect Legislature added.) cure.” (Italics easier but fallacious allegedly either cases the authority, right, involving specifically
Reported *33 or state to the federal amygdalin transpor- government penalize, prohibit, States, v. tation, In or use are rare. United possession Rutherford to action was cancer victims a class brought seeking by F.Supp. to from Administration desist the Federal (FDA) preclud- Drug compel cancer. from its of administration suffering amygdalin patients By ing nonaction, FDA contended, it made available. was amygdalin He was in the United States. advised medical advice Rutherford sought resection, removal of his rectum. He of abdominal of the necessity treatment at a medical laetrile these alternatives sought rejected for a he was treated weeks clinic in Mexico. There period Tijuana, the continued use of cured. He without was returned as alleged of escalation of carcinoma. he faced the amygdalin prospect States, found that the in v. United The district court supra, Rutherford FDA, “. . . its under Code section had: abdicated 21 United States laetrile should or to make a clear whether determination drug duty been in for not be has use should commerce drug though placed with it.” have been treated and thousands years many persons records, The court further found from the exhibits testimony “. . . It not that: laetrile is not lethal in sense of word. harmful to the human under when used in amounts body proper proper control and relief from cancer disease can effect supervision the same.” satisfaction who are to use many privileged (Rutherford ' States, In view United of this failure of the 1212.) F.Supp. Federal to act accordance with the constitutional Administration Drug intent, the others were court found that Rutherford and without wholly with the of 21 United States means or resources to provisions comply each them was denied “the Code section further that freedom 355(b),10 or cure their cancer.” of choice for treatment to alleviate laetrile by “(a) No shall introduce or Code section 355 provides part: person 10 21United States new unless an of an drug, into commerce any approval for introduction interstate deliver (b) of is effective with such subsection this section respect filed pursuant application drug.” Wade, its decision the Roe v. 410 U.S. Basing upon concept one formed the emanations from rights Amendments, of the Fifth and Fourteenth the court guarantees relief. granted requested injunctive was reviewed sub nomine Stowe United States America Rutherford D.C.
(10-12-75) No. CIV-75-0218-B The court of Cir.).11 (10th appeals declined review the district court’s laetrile was an effective rulings cancer, toxic, treatment was not and the new drug application 21 United States Code section was 355(a), unconstitutional. provision, Rather the court of confined itself issue whether the appeals laetrile was a so-called “new FDA The court of drug” requiring approval. held that the record made before trial court was not sufficient appeals but concluded the the district court in granted “preliminary injunction should case be and the same is (Italics added.) upheld”
After remand to the court district filed it opinion January however, view, “In was held: absence of complete any good-faith record in case, of its in this as the record here agency is support position nonexistent; not but and in merely incomplete, virtually appreciation the fact ill cancer aof substance he depriving terminally patient finds whether such benefit is or therapeutic, physical psychological, creates the real risk that be sustained.” very irreparable injury might
The district court remains in effect remand to the injunction pending FDA. America, al., In Carnohan v. States et States United United District
Court, Southern District of Civil California No. 77- (San Diego), 0010-GT, was a terminal cancer He plaintiff patient. sought enjoin FDA’s interference or with his interstate importation transportation for his own amygdalin consumption. Mexico,
The court laetrile found Carnohan was and in receiving receive order to he either choose to live in Mexico must or he drug commute The court must for his treatment. its basic weighed daily for the relief the harm to issuance authority injunctive against that could occur laws calculated to weakening public prevent possibly was the 11Stowe in the case. He a cancer original was plaintiff Rutherford died in the of the suit. Rutherford and Mrs. Schneider filed further pending papers Schneider, Mrs. Rutherford’s died before the on the proceedings. hearing coplaintiff, which was issued the district court. preliminary injunction their need. The on victimization of cancer victims by playing desperate ill with cancer and where a court observed terminally person “. . . treatments: harm to other considerably public unresponsive methods of Such a would other reduced. avoiding person . . . .” court treatment enjoined [accepted] Thereupon generally States Customs Service from Camohan’s United interfering possession of a in interstate not in excess three-month commerce moving supply laetrile the FDA of its study. pending completion by carved These out federal judicially exceptions prohibition rest an interstate importation transportation amygdalin upon against No state interest enforcement unarticulated compelling required premise. of the laetrile ban in recited circumstances.
VI Conclusions final, Does We turn now to imposition pivotal question: aas cancer criminal sanction on doctor prescribing amygdalin victim, first cancer without for an informed treatment seeking consenting effectiveness, serve a its compelling safety governmental approval state interest? *35 interest from derives has found the state’s Legislature compelling care, cure of treatment or “interest” in the “effective
its persons diagnosis, Code, Further 1700.) § & Saf. from cancer.” (Health suffering of forms of found: “. . . accurate many diagnosis early Legislature treatment cancer, methods of which of followed by application prompt from of death cancer . . reduces the likelihood are . scientifically proven reasons to cancer .” The are . . . these deny argue compelling People an of as victims a doctor drug. unapproved prescription by yet section 1707.1 is an Without Code Health and attempt question, Safety of health to of in the area at exercise public protect legislative power 1700 section reflects a victim. The concern cancer legislative expressed and false claims of founded and concern for well misleading appropriate when it finds: “Various for cancer. The section states truism cures State and continue have represented represent persons skills, medicines, the effective . . . ... themselves as possessing treatment, cancer, are which cure representations diagnosis, . . .” misleading public,.
However, what factual basis licensed doctors in the State of upon duly are California let alone found of the strictures made in chargeable, guilty doctors, is not clear. the State legislative finding Why “recognized by clinical are honored capable exercising acceptable judgment,” within that invidious class “various who being encompassed persons” “mislead” the is obscure. “The . .. is public suggestion necessarily He, . somewhat . . conscientious degrading physician, perhaps else, care, more than in this area of anyone knowledgeable Bolton, he is aware of human . . . and needs.” v. (Doe frailty, supra, 179, 201, 739, U.S. L.Ed.2d 93 S.Ct. 750].) no hint of what rational classification legislative finding gives includes medical doctors within the ambit of quacks.
The doctor in California is licensed after practice only meeting long education, He is bound experience oath to rigid qualifications. life his He is under a preserve, prolong, patient. legal duty, suit, under threat of to act in accordance with the malpractice generally standards medical in his in this state. accepted He practice community under threat of to treat after required malpractice only receiving Grant, informed consent of the 8 Cal.3d (Cobbs 229.) patient. These are the “rational means” law has insure society through imposed standard of It California doctor. follows after high performance by met, such standards are the matter choice treatment rigid determination, informed becomes “a medical consenting patient purely which is within a doctor’s (Aden professional judgment.” Younger, “Reliance must be 677.) Cal.App.3d placed upon license, assurance his . . . that he given by possesses requisite v. State 129 U.S. (Dent West 122-123 qualifications.” Virginia, 623, 626, L.Ed. 9 S.Ct. 233].) this exercise of the doctor’s on some Limiting professional judgment *36 that “various in this state are vague suspicion persons” engaging does not follow as a matter of quackery logic.
The that “various man, premise salesman, snake oil persons,”—con —have made or will make false and to misleading representations treatment and cure of cancer public concerning diagnosis, certainly warrants, means, as rational the law which and makes criminal prohibits such Health acts. and Code section 1714 Safety accomplishes precise It a with false intent to defraud of purpose. prohibits representation device or substance treatment an as effective cure for cancer. Dr. Code of Health Safety Privitera does not contest appropriateness the announced 1714 as it does fit legislative section purpose. treat, of the to limitation
We conclude the prescribe, upon to the no 1707.1 bears expressed doctor of section logical relationship a lack of reasonable fortiori, if there is relationship A legislative purpose. used, no then and the means compel- the end certainly between sought state purpose present.12 ling 1707.1. Code section under Health and
Dr. Privitera is Safety charged the unauthorized an intent for its breach statute This prescribe requires of the treatment of cancer. The for treatment efficacy or medicine drug The under this statute. is not an issue or medicine prescribed proposed disclosures, discussions, made in truth or veracity representations, not an treatment, doctor to the are with the patient connection under section 1707.1. made a issue in trial charges the exercise of his the doctor in attaches because The criminal liability not of cancer a for treatment yet has medical drug prescribed judgment Food, Act and Cosmetic the federal 505 of under section Drug approved of the state board. Whether received or which has yet approval has a miracle a believes he medical drug, in his best doctor judgment The is not an issue. or a govern- food placebo hope-giving supplement cannot therefore the doctor have not mental given approval; agencies prescribe. care, doctor’s and the to receive medical
The patient’s right established because of some limited not administer it are substantially is so if this medication, to the some defect in the danger public a becomes criminal because agency treated. doctor government compatible 1707.1 is totally Code section Safety of Health and enforcement 12Refusing vaccination, (3) requiring water (2) supplies, (1) fluoridation public compulsory doctor, and from a licensed on certain be available drugs public prescription mother at of a in the health (4) prospective of a state interest compelling recognition Wade, 410 U.S. (Roe the first trimester of the end of pregnancy. approximately the individual’s between 113.) located the line of demarcation Mill Philosopher precisely mind, himself, the state retained by and the sovereignty own body control Itis individual, from distinguished of action in which society, “there is sphere saying much has, (Mill, interest.” On Liberty, supra.) an indirect if any, only the right does not encompass that freedom speech Holmes’ observation quoted society danger theater rests readily recognizable in a crowded upon shout fire Wade, example a classic 410 U.S. Roe state intervention. thus authorizes Court States reasoning the Mill United of a silent application interest over her own body public control the line between mother’s delineating *37 is another life and being. when there has not its to the given exercise of his best prior approval medical judgment.
The statute must be measured against legislative purpose cancer and for the frustrating of the quacks, effective promotion early care, Instead, cure of cancer. diagnosis the immediate and most direct effect chill, section 1707.1 is to prohibition prevent, innovative treatment doctor, a licensed or in the by class of person most to make the persons likely dreaded hoped-for breakthrough against cancer. How this threat to the innovative will increase logically physician effective and cure of cancer early is difficult to diagnosis perceive. Privitera, People 39 at Cal.App.3d Supp. page makes the remarkable supplement observation following concerning state which interest compelling Health and Code section supports Safety “. 1707.1: . . cancer remedies are more hazardous to the patient ineffective than the state-sanctionedalternatives.'>'’ (Italics added.) not made has such an Legislature and if such express finding should be then it denies the finding the exercise of one implied patient his most He, fundamental instead, has the choice of rights. “state sanctioned” treatment the doctor or no treatment by from the doctor at all. if be this it Again, legislative misses its mark. purpose, cures, fraudulent Diminishing treatment, cancer is punishing quackery a laudible The means chosen objective. is bureaucrati- Legislature none, treatment or cally predetermined into a injected constitutionally area of This protected fundamental privacy. privacy, alone, be left is “older than the Bill of older than our Rights, political It cannot be systems.” denied swept away, processes compelled of “state sanctioned acceptance alternatives.”
It that the conceded may treatment cancer—or of dangers serious and disabling nonlicensed of medical disease—by purveyor services with to the fraught dangers public properly subject Thus the legislative statute as here protection. difficulty applied is that it seeks to a licensed (that of medical remedy danger doctor of a treatment cancer first prescribing without getting approval of an administrative when that shown to exist. body) danger yet
If it be section 1707.1 conceded would assure some theoretically or that protection unfortunate who public portion public have cancer but who have not treatment, heard need for yet early *38 or other modality by the use of any unapproved amygdalin by prohibiting United and the law this state under the the licensed physician, yet condition, it self-treat, whatever use, his can States individual possess, In be, without to his heart’s content liability.13 use of amygdalin, may the cancer back to matter of treatment effect it turns the whole patient alternatives.” the “state sanctioned if is to himself he unwilling accept to override reason shown there no We conclude not is compelling only the of choice in treatment or fundamental the doctor’s the patient’s to be to a licensed that the statute when but sought applied setting test a rational means of does not as medical doctor accomplish- pass of the announced ment legislative purpose. in one further concern. The evidence this shows
There remains case victims, or without cancer whether defense’s People’s exception witnesses, were aware of the nature of the knowledgeable persons fully from Dr. sanctioned alternatives” before treatment Privi- “state seeking alternatives; orthodox tera. were unwilling accept many Many are not the verdict “terminal.” These wide-eyed unwilling accept to be conned. The class actions filed against country bumpkins seeking authorities compel availability drug governmental of the cancer victims.14 We need illustrate question desperate seeking a cite for a The one witness as basis composite picture: only cancer of the treatment recom- “senior” citizen with diagnosed prostate; castration; and female hormone treatment for removal mended—prostate the rest of his life. victim refused these alternatives The accept simply and treatment. sought amygdalin a felt Dr. Privitera for witnesses conveyed testifying of both disease of death. One senses mortal fear
imminency to avoid human This is a orthodox alternatives. seeking utterly desperate rationale form the life. These elements unspoken prolong pain 240, Ellen S. footnote out Hodgson, pointing incongruity. 13See infra, page $10,000 . . faced a fine and sentence—the laetrile: “. five-year prison smuggler for resale for an intended drug maximum imposed smuggling illegal penalty (1970). not the 18 U.S.C. That supplier, possessor, § United States. See only as is due to that the is not classified drug to criminal the fact laetrile subject prosecution which is heroin or possession illegal. substance—like marijuana—the a ‘controlled’ ‘safe,’ However, cannot be it recognized drug the FDA has not because officially across state lines.” into the country transported brought A on Unorthodox Health Treatment Restrictions 14See Hodgson, California: an UCLA L.Rev. excellent Economic' Legal Analysis, law. exhaustive review case and statutory *39 740
of the and Carnohan Quinlan, decisions. Matter 70 Rutherford of 10 N.J. A.2d states the . 663], “. . no eloquently: [355 premise external of interest the State could to Karen endure compelling compel unendurable, a few measurable months with no only vegetate realistic or semblance of possibility returning cognitive sapient life. We no thread between such a choice perceive logic distinguishing which, on Karen’s and a similar choice under the evidence in this part case, ill, be could made a riddled by competent patient terminally cancer and such a not would be resuscitated suffering great pain; on a . . . and a would not be his will respirator put kept against fortiori on a respirator.” enforcement of 19 victims the Health and
To these cancer Safety 1707.1, treatment, Code section the denial to them of medical albeit unorthodox, albeit a state must take on a unapproved by agency, surely No demonstrated no Kafkaesque, nightmare, quality. public danger, state, interest warrants an Orwellian intrusion into the compelling of zones of most private privacy. state has in the name the cancer victim criminalized protecting innovate,
the doctor who is an willing willing try unapproved drug terminal consent of his From patient. patient’s viewpoint new is reached a broad of this law so depth inhumanity sweep No interest state Dr. Privitera’s 19 interpreted. compelling requires unendurable, die, cancer to endure the even forbidden patients hope. Health and Code section 1707.1 as here to Safety sought applied invades the and the doctor’s zone of without patient’s showing privacy external state interests violation of the Fourteenth Amend- compelling I, ment federal Constitution 1 and article section of the California Constitution.
NEWMAN, J.I dissent, the Chief Justice’s that I would join except on the federal Constitution. What the rely my majority colleagues condone here is action that to me to constitute cruel and appears 131, 151, inhuman treatment. dis. in Cramer v. 23 (Cf. Cal.3d opn. Tyars, fn. 1 Rosenblatt, 588 P.2d too 793], See Care Health Cal.Rptr. and Administrative Law: A Structural 88 Yale (1978) Approach Reform L.J. Structure of Health Care Reform: Legal Creating [“The of Public Control”].) Appearance selective downgrades opinion quotation majority
By course, broad “relates, to an California, enormously which v. Davis . . .” (White and belief . action and diverse field personal 94, What P.2d 222].) 13 Cal.3d (1975) Cal.Rptr. *40 I, inalienable is an
California Constitution article section guarantees no By privacy.” obtaining safety, happiness, right “pursuing Court United States mirror means do those words merely a Davis, Tobriner’s Justice In White opinion opinions. from the official these statements court noted unanimous approvingly “ ‘The full brochure that illuminate scope: right privacy’s help election It is fundamental and to be left alone. is the compelling privacy emotions, homes, families, our our our It our interest. thoughts, protects our freedom of communion and our our our personalities, expressions, ” . . .’ at (Id., 774.) we choose. with the p. freedom associate people “ and essential an American ‘The heritage important Fourth, First, Third, Fifth and the fundamental rights guaranteed should be Constitution. This to the U.S. Amendments Ninth at need. . . .’” (Id., when there is compelling public abridged only detect no such need. In case I 775.) p. Bird, for a denied 1979. were rehearing April petitions
Appellants’ Newman, J., should be were of the that the J., and C. opinion petitions granted.