Fentanyl, Drug Policy, and Informed Consent

Should drugs be legal? Even fentanyl? These are questions libertarians hear regularly as the death toll attributed to fentanyl continues to rise.

One of the core foundations of libertarian thought is consent, and by extension, the ability to grant or withdraw consent. The reason why some choices are generally denied to minors yet broadly extended to adults is based on the presumption that minors lack the maturity to offer full and informed consent to those actions. (The idea that the clock striking midnight on a particular day magically imbues an individual with the maturity necessary to consent has its own problems, of course.)

I believe it is consistent with the principles of liberty to draw a distinction between an adult consenting to the known effects of alcohol or marijuana (or even unadulterated MDMA or cocaine) and a suffering or depressed person consuming a questionable quantity of fentanyl that has been cut or adulterated with unknown contaminants. With few exceptions, even the sellers of fentanyl do not know the truth about its contents. In such scenarios, fully informed consent is essentially impossible.

This fundamental issue of consent is likewise at the core of opposing genital mutilation (now euphemistically called “gender-affirming care”). Children obviously cannot consent to such atrocities, and there is a rational argument that neither can the mentally ill. This naturally raises the question of if someone who desires such mutilation could ever be mentally healthy enough to consent to the operation. (A concern that is mirrored in arguments against physician-assisted suicide.)

Consent plays a key role in the arguments against vaccine mandates too, where threats of lost income and reduced access to goods and services (if not outright arrest and incarceration) are used to intimidate someone into making potentially life-altering (or life-ending) medical decisions.

Consider this variation on the classic trolley problem: If a libertarian sees someone step in the path of an oncoming train, should the libertarian use force to push that person out of the way or assume they know what they’re doing and allow the deadly collision to occur? A strict deontologist could argue that unless help is requested, intervention is unwarranted, but I would argue that when there are knowledge gaps, one should err on the side of preserving future choice. The libertarian in our hypothetical doesn’t know if the person stepping into the path of the oncoming train is aware of the train’s presence or the consequences of a collision. By pushing the person out of the way, the libertarian preserves the person’s ability to make a more informed decision in the future—even if that decision is ultimately suicide by train.

There is a significant difference between intervening in transactions involving underworld fentanyl and arresting people because they are growing marijuana in their basements. Ultimately, it’s the same reason why 5-year-olds aren’t allowed to tattoo their faces, but an adult rapper like 6ix9ine (aka Tekashi69) is. He’s supposedly mature enough to consent to look like an idiot for the rest of his life, but with kids, we try to preserve their ability to make such choices when they’re more mature.

Defining the “proper role of government” starts with defining the proper role of individuals. If you as an individual have the right or responsibility to intervene in a situation, the theory of delegated powers suggests that such a right or responsibility can be delegated to the state. If you as an individual DO NOT have the right or responsibility to intervene in a situation, neither does the state.

Drug policy does not require making an exception to the principles of liberty. When mature individuals make intentional and informed choices to engage in behaviors that may (or do) cause harm to themselves, there is no right or responsibility to intervene. Such intervention is neither warranted nor justified when there is no compelling evidence that an individual lacks the mental capacity to knowingly consent to an action and its consequences.

Intervention can be justified when a minor or adult with diminished mental capacity is being abused, coerced, or manipulated into engaging in harmful behaviors, however, such as drug use or genital mutilation. This could apply both to the use of illegal drugs and to the inappropriate or off-label use of pharmaceutical drugs such as puberty blockers, supraphysiological doses of testosterone given to a female; or supraphysiological doses of estrogen given to a male.

Intervening to protect a vulnerable individual from abuse is justified for the same reason that defensive force could justifiably be used against a home invader who kicks down your neighbor’s door. From a moral standpoint (though not necessarily a legal one in all places), the standards that exist for self-defense also apply when coming to the defense of another.

IMAGE CREDIT: Fabebk, CC BY-SA 4.0, via Wikimedia Commons

By Parrish Miller

This is my personal website where I discuss issues of philosophy, politics, and survival from a libertarian perspective.

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