The PEOPLE of the State of California, Plaintiff and Respondent, v. James Robert PRIVITERA, Jr., et al., Defendants and Appellants.
Under California Health and Safety Code section 1707.1,[FN1] it is a misdemeanor to sell, deliver, prescribe or administer any drug or device to be used in the diagnosis, treatment, alleviation or cure of cancer which has not been approved by the designated federal agency (21 U.S.C.S. s 355) or by a state board (Health & Saf. Code s 1704).
Defendants, James Robert Privitera, Jr., a medical doctor, William David Turner, Phyllis Blanche Disney, Winifred Agnes Davis, and Carroll Ruth Leslie, were convicted by jury of a felony, conspiracy to sell, to prescribe, an unapproved drug, laetrile, intended for the alleviation or cure of cancer. (Pen.Code s 182, subd. 1; Health & Saf. Code s 1707.1.) Davis and Turner were convicted of selling laetrile to be used for the alleviation or cure of cancer. (Health & Saf. Code s 1707.1.)
We view the evidence in the light most favorable to the judgments. (People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.) The defendants were involved in a common plan to import, distribute and prescribe laetrile (also referred to as amygdalin or vitamin B-17) to cancer patients. Defendants Turner and Davis were the importers and chief suppliers of the drug. Defendants Leslie and Disney worked as the distribution network in various residential areas. Dr. Privitera prescribed amygdalin for cancer victims (or to undercover state agents represented to be cancer victims). Dr. Privitera referred patients to Turner and Davis to buy the amygdalin; Disney referred patients to Dr. Privitera for treatment.
The defendants told the prospective users of the drug that amygdalin was an effective treatment or cure for cancer. Substantial evidence supports the jury finding of a common plan or agreement to supply and prescribe amygdalin as a cancer cure. Laetrile has not been “approved” by a designated governmental agency.
Contentions of the Parties Factual and Legal
Dr. Privitera contends that California Health and Safety Code section 1707.1 is an unconstitutional invasion of the cancer victim's right to obtain and use amygdalin in violation of rights guaranteed by the United States Constitution, Amendments I, IV, V, VI, VII, VIII, and XIV, and California Constitution, article I, sections 1, 7, 7(a) and 15. This, he asserts, is an invasion of the patient's right of privacy, his or her right to be left alone in choice of orthodox versus unorthodox treatment of cancer. As a corollary and necessary concomitant of the right of privacy of the patient, Dr. Privitera argues that the constitutional protection accorded the cancer victim's right to utilize amygdalin in a program of nutritional therapy extends to physicians willing to administer the drug and to persons willing to supply the drug for the cancer victim's use. Argues Dr. Privitera:
“The protection of constitutional guarantees of privacy and personal liberty, therefore, extends not only to the patient pursuing a course of nutritional therapy but to the physician who prescribes and administers the therapy and to the person who furnishes the essential components.”
Dr. Privitera does not challenge the validity of the general or specific regulatory laws to the extent they prohibit the advertisement of amygdalin as a cure for cancer (Health & Saf. Code s 1714); or require amygdalin be labeled in accordance with state law and regulations (Health & Saf. Code s 26463); or impose standards on the manufacturing and packing of amygdalin to insure quality and prevent adulteration or deterioration, or the prohibition of the sale of amygdalin to members of the general public for the purpose of treating cancer by persons other than licensed physicians (Health & Saf. Code s 26400, et seq.). (Health & Saf. Code ss 1704, 26670, 1707.1, 1709; 17 Cal.Admin. Code s 10400.1.)
Rather, Dr. Privitera's challenge is directed to those laws, specifically the one of which he is convicted, insofar as they prohibit a duly licensed physician from administering amygdaline to cancer patients and which prohibit its sale to either licensed physicians or persons who have obtained prescriptions from a licensed physician. (Health & Saf. Code ss 1700-1721.)
According to Dr. Privitera, this right of choice of medical treatment is a fundamental right of the individual and regulations limiting this right may be justified only by “compelling state interests”; the legislative enactments which seek to regulate or control in the areas of such fundamental rights must be narrowly drawn to protect only the legitimate state interests at stake.
The specific drug here supplied or prescribed is a substance known as amygdalin, also known as laetrile, and also known as vitamin B-17. Amygdalin is a by-product of apricot pits. The substance has been the subject of widespread public dispute as to its efficacy for the treatment of cancer. Orthodox medicine, as represented by the American Cancer Society, places it in the area of nostrums. Its proponents vary in their claims from that as a cure for cancer or as simply a nutritional aid causing the patient to gain weight, have a better appetite, and a better emotional outlook. It is generally conceded that amygdalin is nontoxic; it does not fall within the general ban of drugs which are toxic, habit forming, addictive, or otherwise distort reality. Conventional medicine regards the “evidence,” “proof,” of the curative effect of amygdalin as anecdotal in nature and contends the drug has never been established by scientific methodology to have any effect whatsoever upon either the cure or retardation of cancer growth. Despite the pros and cons of the experts in the field of medicine, and others from non-medical fields taking side on this issue, cancer victims in large numbers have sought the relief, whatever its nature, which is available from the use of this drug. Where, as in Mexico and in West Germany, the drug is available through doctors and clinics, cancer victims, able to travel, seek out and obtain the treatment.
Dr. Privitera points out that many cancer victims have investigated and evaluated the merits of surgery, radiation therapy or chemotherapy with the aid of competent medical advice and have made the highly personal decision; the benefits from such therapy is not sufficient to justify the risks which include disfigurement, debilitation, and accelerated death and for this reason have chosen to seek amygdalin as a treatment; other cancer victims have been advised that their condition is hopeless, their case is terminal and as a last resort before certain death, seek amygdalin.
Dr. Privitera contends many conceded cancer victims, competent and responsible adults, seek and use amygdalin as a food substance to ameliorate the horrifying physical wasting away of the body (cachexia) which accompanies cancer. Thus they seek amygdalin not only for its possible cancer curative benefits, but also for its known nutritional benefits. Cancer victims cannot be certain amygdalin will either cure or control cancer but they believe, based upon the anecdotal, personal experience approach, the drug provides relief from the terrible pain, mental malaise, the emotional depression and weight loss which mark the progression of their disease.
The People assert, contrary to Dr. Privitera's contentions, not a single accredited medical school in the State of California teaches amygdalin might be effective in the controlling or curing of cancer. Further the use of amygdalin as a form of nutritional therapy is officially regarded by the State Department of Health, the California Medical Association, the National Cancer Institute and a great block of practicing physicians, to be of no value whatsoever in the controlling or curing of cancer.
Dr. Privitera specifically contends section 1707.1 of the Health and Safety Code is unconstitutional. It is a denial of one aspect of individual “liberty” protected by the due process clause of the Fourteenth Amendment.
The patient, he asserts, has a right of “privacy” or “a guarantee of certain areas or zones of privacy.” This is the individual right of independence in making certain kinds of important decisions. The very nature of the relationship, the act to be performed, the decision to be made, precludes unjustified state presence. It is “the right of the individual to be free in action, thought, experience and belief from governmental compulsion.” (Kurland, “The Private I”, University of Chicago Magazine 7, 8, Autumn 1976.) It is that right voiced by Justice Brandeis in his dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, “the right to be let alone”, “the right most valued by civilized men.”
Historically this right of privacy was first articulated as a constitutional right in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, a decision holding unconstitutional a statute prohibiting the use of contraceptives. However, the recognition of the existence, innate in every human being, of a zone of privacy is older than the Bill of Rights, older than our political parties, older than the state's concern with the nature of treatment to be received by cancer-ridden patients. It is in the nature of man that such right exists.
This principle, now of constitutional dimension, has been embraced by many decisions in a variety of situations.[FN2] (See In re Lifschutz, 2 Cal.3d 415, 432, fn. 12, 85 Cal.Rptr. 829, 467 P.2d 577 and Roe v. Wade, 410 U.S. 113, 151-153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147). This concept, when placed in the doctor-patient relationship is the “right to decide independently, with the advice of his physician, to acquire and to use needed medication.” (Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 876, 878, 51 L.Ed.2d 64; Doe v. Bolton, 410 U.S. 179, 197, 93 S.Ct. 739, 750, 35 L.Ed.2d 201.) In re Lifschutz, supra, 2 Cal.3d 415, 431, 432, 85 Cal.Rptr. 829, 840, 467 P.2d 557, 568, makes this profound insight concerning Griswold :
“Indeed, the decision's concern for valued aspects of individual privacy may ultimately aid in protecting man from the dehumanization of an ever-encroaching technological environment.”
The People concede, as they must, the fact, the existence of this expanding and as yet judicially unmeasured concept of individual privacy. However, they contend the State of California has the broad power to establish and enforce standards of conduct within its borders relative to health. This is a vital aspect of its police power. Within its ambit is the authority of the state to regulate the delivery of health services. (Barsky v. Board of Regents of University, 347 U.S. 442, 449, 74 S.Ct. 650, 654, 98 L.Ed. 829; People v. Nunn, 46 Cal.2d 460, 469, 296 P.2d 813.)
This broad premise authorizes the invasion of the doctor-patient zone of privacy by the state to prohibit the doctor prescribing certain species of drugs. (Blinder v. Division of Narcotic Enforcement, 25 Cal.App.3d 174, 101 Cal.Rptr. 635.) The People point to Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 878, fn. 30, 51 L.Ed.2d 64, and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65, 67, 93 S.Ct. 2628, 37 L.Ed.2d 446, in support of this broad position.
The People concede any exercise of police power, depends in the first instance upon an articulated public interest in the activity to be regulated and second, the means used must be reasonably necessary for the accomplishment of that public purpose. (Goldblatt v. Town of Hempstead, New York, 369 U.S. 590, 594, 595, 82 S.Ct. 987, 990, 8 L.Ed.2d 130.)
At the heart of the People's defense of Health and Safety Code section 1707.1 is the premise, Legislature declared[FN3] , that early and accurate diagnosis of cancer materially reduces the likelihood of death, prolongs useful life; where false or misleading representations are made to the public, large numbers rely upon such falsities, and needlessly die of cancer.
The People contend the California Legislature in enacting the statutory scheme made this implicit finding: Ineffective cancer remedies are more hazardous to the patient than the state sanctioned alternatives. (Health & Saf. Code s 1700.)
Concerning the efficacy of amygdalin, this court, this opinion, does not enter that fray. The effectiveness of amygdalin as a cure for cancer or as a nutritional aid with general health giving benefits, is not, as a matter of law, an issue when the charge is a violation of Health and Safety Code section 1707.1. The issue here is human liberty. Can the informed cancer-ridden patient be limited in choice of treatment received from a state licensed physician to “state sanctioned alternatives”?[FN4] To resolve these contraposed contentions we must carefully analyze the nature of the right protected.
The Patient's Right to Privacy
The challenge of Dr. Privitera to Health and Safety Code section 1707.1 resolves itself, upon analysis, into two separate and distinct areas of claimed constitutional rights; there is the right of privacy of the patient to choose or reject his or her own treatment, orthodox or unorthodox, approved or unapproved by the state. The second contention is bifaceted: Dr. Privitera asserts (1) a derivative right equal in stature to that of his patient, and (2) the doctor's independent right to practice medicine generally and to prescribe medicine, use procedures, without unreasonable government restrictions.
We examine first the right of the patient and determine this right is of such fundamental nature its free exercise may be impinged upon or forbidden only by such state interest as may be a “compelling interest.”
The “fundamental” nature of this right derives from its source. It flows from the very nature of man. Justice Brandeis in Olmstead v. United States, supra, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 stated:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation . . . .” (Emphasis added.)
Judge Cardozo in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, at 93, stated:
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; . . . .”
The right to control one's own body is not restricted to the wise; it includes the “foolish” refusal of medical treatment. Nor is this right limited in its recognition to any single segment of the political, economic, or social thought spectrum. In commenting upon Justice Brandeis' most valued of rights, that right to be left alone, now Chief Justice Burger, in his dissent in Application of President & Directors of Georgetown Col.,118 U.S.App.D.C. 90, at page 97, 331 F.2d 1010, at page 1017, stated:
“Nothing in this utterance suggests that Justice Brandeis thought an individual possessed these rights only as to sensible beliefs, valid thoughts, reasonable emotions, or well-founded sensations. I suggest he intended to include a great many foolish, unreasonable and even absurd ideas which do not conform, such as refusing medical treatment even at great risk.”
Without specific reference to a constitutional basis, the right to choose what may be a suicidal medical course has been upheld. In Erickson v. Dilgard, 44 Misc.2d 27, 252 N.Y.S.2d 705, 706, a New York court sustained the unwilling Jehovah's Witness' objection to a needed blood transfusion despite risk of death. The court there said at page 706:
“. . . it is the individual who is the subject of a medical decision who has the final say and that this must necessarily be so in a system of government which gives the greatest possible protection to the individual in the furtherance of his own desires.”
For analogy we look to the very heart of this right of choice of medical procedures, the right to beget or not to beget a child. In the case of Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 the Supreme Court held unconstitutional a Connecticut statute prohibiting the use of contraceptives. Following Griswold a series of United States Supreme Court cases have attempted to ascertain the boundaries of this aspect of privacy. The outer limits have not yet been determined. However, it is made clear by decision that unjustified government interference with personal decisions
“. . . relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., (438) at 453-454, 92 S.Ct., (1029) at 1038-1039, (31 L.Ed.2d 349); id., at 460, 463-465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.” (Roe v. Wade, supra, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147.)
violate this concept.
Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 dealt specifically with the rights to determine one's own medical treatment. The United States Supreme Court held that the mother's constitutional right of privacy was broad enough to encompass her decision whether to terminate her pregnancy before the end of the first trimester of pregnancy. Said the court at page 163, 93 S.Ct. at page 731:
“With respect to the State's important and legitimate interest in the health of the mother the ‘compelling’ point, in light of present medical knowledge, is at approximately the end of the first trimester.” (Roe v. Wade, supra, 410 U.S. 113, 163, 93 S.Ct. 705, 731, 35 L.Ed.2d 147.)
In the companion case, Doe v. Bolton, supra, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, the United States Supreme Court held the statutes requiring abortions to be conducted in hospitals, or accredited hospitals, requiring the interposition of a hospital abortion committee and thus limiting abortions to those circumstances was unconstitutional. In vindicating the woman's right of choice of medical care, the Supreme Court stated:
“The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview.” (Doe v. Bolton, supra, 410 U.S. 179, 197, 93 S.Ct. 739, 750, 35 L.Ed.2d 201.)
To support its conclusion, the Supreme Court examined the role of the licensed physician, saying:
“If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice. The attending physician will know when a consultation is advisable the doubtful situation, the need for assurance when the medical decision is a delicate one, and the like. Physicians have followed this routine historically and know its usefulness and benefit for all concerned. It is still true today that ‘(r) eliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he (the physician) possesses the requisite qualifications.’ Dent v. West Virginia, 129 U.S. 114, 122-123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889). See United States v. Vuitch, 402 U.S. (62), at 71, 91 S.Ct. (1294), at 1298, (28 L.Ed.2d 601.)” (Doe v. Bolton, supra, 410 U.S. 179, 199-200, 93 S.Ct. 739, 751, 35 L.Ed.2d 201.)
In Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64, the United States Supreme Court considered the New York statutory requirements with respect to prescriptions for “dangerous, legitimate” drugs. The requirement in question was that of notification. The court balanced the invasion of the zone of privacy against the public's right involved and concluded that with respect to the particular type of drugs involved the statutes were a reasonable exercise of the state's broad police power. In so holding the court discussed the right of an individual to choice of treatment saying:
“Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication. . . . Within dosage limits which appellees do not challenge, the decision to prescribe, or to use, is left entirely to the physician and the patient.” (Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 878, 51 L.Ed.2d 64.)
Concerning the doctor's “right to practice” Whalen points out:
“The appellee doctors argue separately that the statute impairs their right to practice medicine free of unwarranted state interference. If the doctors' claim has any reference to the impact of the 1972 statute on their own procedures, it is clearly frivolous. For even the prior statute required the doctor to prepare a written prescription identifying the name and address of the patient and the dosage of the prescribed drug. To the extent that their claim has reference to the possibility that the patients' concern about disclosure may induce them to refuse needed medication, the doctors' claim is derivative from, and therefore no stronger than, the patients'. Our rejection of their claim therefore disposes of the doctors' as well.” (Emphasis added; Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 879, 31 L.Ed.2d 64.)
Carey v. Populations Services Intern., 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675, examines the question involving the availability of contraceptives to minors. The Supreme Court held the right to privacy in matters affecting procreation extends to minors as well as adults.
The California Supreme Court has set forth as a “postulate” or “axiomatic” the right to choose one's own “lawful” treatment. In Cobbs v. Grant, 8 Cal.3d 229, at page 242, 104 Cal.Rptr. 505, at page 513, 502 P.2d 1, at page 9, the court, in determining the duty of the physician to secure the informed consent of the patient to treatment, said:
“Preliminarily we employ several postulates. . . . The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.”
Aden v. Younger, 57 Cal.App.3d 662, 129 Cal.Rptr. 535, held unconstitutional the provisions of Welfare and Institutions Code section 5326.4 requiring substantive review by a medical committee of a voluntary, competent patient's consent to choice of electro-shock treatment. It was an unjustified infringement of the patient's right to privacy. This court stated at page 684, 129 Cal.Rptr. at page 549:
“Where informed consent is adequately insured, there is no justification for infringing upon the patient's right to privacy in selecting and consenting to the treatment. The state has varied interests which are served by the regulation of ECT, but these interests are not served where the patient and his physician are the best judges of the patient's health, safety and welfare.
“. . . Any possible need which exists for the voluntary and competent patient cannot prevail in the face of the serious infringement to the patient's right to privacy as guaranteed by Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 and Doe v. Bolton, supra, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201.” (Aden v. Younger, supra, 57 Cal.App.3d 662, 684, 129 Cal.Rptr. 535.)
This right-of-choice-of-medical-treatment concept reached its quintessence in the Matter of Quinlan, 70 N.J. 10, 355 A.2d 647. The New Jersey Supreme Court was called upon to determine whether the father, as guardian of Karen Quinlan, a 21-year-old girl existing in a “persistent vegetative state,” could be authorized to discontinue the extraordinary procedures sustaining the daughter's vital processes. The first question was: Did the comatose Karen Quinlan or her father have a right of choice to choose death or life? And secondly, could the father, through the court guardianship procedures, be authorized on her behalf to make such a choice. The court authorized, through the father-guardian, the withdrawal of the life support processes. The right of privacy inherent in the exceptional circumstances of that case authorized the rejection of the life support systems. Reasoned the court:
“The claimed interests of the State in this case are essentially the preservation and sanctity of human life and defense of the right of the physician to administer medical treatment according to his best judgment. In this case the doctors say that removing Karen from the respirator will conflict with their professional judgment.” (Matter of Quinlan, supra, (Supreme Court, New Jersey) 355 A.2d 647, 663.)
Yet, the court affirmed Karen's right to choice, had she been competent to assert it, and authorized the father to exercise it on her behalf:
“. . . there would be no criminal homicide in the circumstances of this case. . . . even if it were to be regarded as homicide, it would not be unlawful.” (Matter of Quinlan, supra, (Supreme Court, New Jersey) 355 A.2d 647, 669-670.)
Concerning the interests of the state in preservation of human health and life the court said:
“We have no hesitancy in deciding, in the instant diametrically opposite case, that no external compelling interest of the State could compel Karen to endure the unendurable, . . . .” (Matter of Quinlan, supra, (Supreme Court, New Jersey) 355 A.2d 647, 663.)
The Doctor's Zone of Privacy
Dr. Privitera asserts a separate and distinct constitutionally protected right a zone of privacy to prescribe, to treat patients whether in the orthodox mode free from unjustified state interference.
Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 accepts as a premise the existence of the right of the individual patient to choose independently with the advice of his physician to use or not to use a particular medication. Said the Supreme Court at 429 U.S. at page 603, 97 S.Ct. at page 878:
“Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication.”
However, with respect to the doctor's right to freedom to treat, to minister to the sick, in Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64, we have heretofore noted the Supreme Court's determination the “doctors' claim is derivative from, and therefore no stronger than, the patients'.”
Doe v. Bolton, supra, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, however, speaks specifically of the doctor's right to administer medical care. Bolton involved a constitutionally defective statute requiring the consent of two state licensed physicians other than the patient's own doctor before an abortion could be performed as well as advance approval of three members of the hospital staff where the abortion was to be performed. Concerning this statute the Supreme Court said:
“The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview.” (Doe v. Bolton, supra, 410 U.S. 179, 197, 93 S.Ct. 739, 750, 35 L.Ed.2d 201, emphasis added.)
Dr. Privitera additionally asserts an independent right to treat, not derived from or measured by his patient's right of choice, without first obtaining approval of the procedure or drug prescribed from a governmental board. He argues Health and Safety Code section 1707.1 invades this right. Again, as in the right of the patient, the doctor's asserted right must be first examined to determine its nature and thereby select the test, the degree of scrutiny to which the state interference will be put. The right found must be balanced against the state the public interest protected.
Dr. Privitera's right, in relation to the patient, has been viewed traditionally as a species of economic interest rather than as “fundamental” akin to the privacy right. If a rational basis was found to support an encroachment, the statute was sustained.
While a dispassionate reading of the physician's licensing requirements raises some question concerning the total rationality of the licensing scheme, such standards are generally upheld as reasonable and necessary means of protecting the public health.
The more recent cases hint at the more profound right in the doctor. It is postulated: There exists in the doctor licensed to practice medicine a right, constitutional in nature, as yet ill-defined, to treat and to treat by unorthodox modalities as yet unapproved by the state board an informed consenting patient.
Doe v. Bolton, supra, 410 U.S. 179, 201, 93 S.Ct. 739, 751, 35 L.Ed.2d 201, states if a physician is licensed by the state he is recognized by the state as capable of expressing acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are remedies available and “reliance must be placed on the assurance given by his license . . . that he possesses the requisite qualifications.”
Roe v. Wade, supra, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 states concerning the termination of pregnancy during the first trimester:
“. . . the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.” (Emphasis added.)
Reason, based on history, experience, supports the doctor's premise. To require prior state approval before advising prescribing-administering a new treatment modality for an informed consenting patient is to suppress innovation by the person best qualified to make medical progress. The treating doctor, the clinician, is at the cutting edge of medical knowledge.
To require the doctor to use only orthodox “state sanctioned” methods of treatment under threat of criminal penalty for variance is to invite a repetition in California of the Soviet experience with “Lysenkoism.”[FN5] The mention of a requirement that licensed doctors must prescribe, treat, within “state sanctioned alternatives” raises the spector of medical stagnation at best, statism, paternalistic Big Brother at worst. It is by the alternatives to orthodoxy that medical progress has been made. A free, progressive society has an enormous stake in recognizing and protecting this right of the physician.[FN6]
The Right of Privacy Article I, Section 1, of the California Constitution
Thus far we have considered only the specific guarantees of the federal bill of rights and the emanations formed therefrom in concluding fundamental rights are encroached by section 1707.1. However:
“ ‘(I)n the area of fundamental civil liberties which includes . . . all protections of the California Declaration of Rights we sit . . . subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.’ ” (Serrano v. Priest, 18 Cal.3d 728, 764, 135 Cal.Rptr. 345, 366, 557 P.2d 929, 950, quoting People v. Longwill, 14 Cal.3d 943, 951, fn. 4, 123 Cal.Rptr. 297, 538 P.2d 753.)
(See also People v. Disbrow, 16 Cal.3d 101, 114-115, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Norman, 14 Cal.3d 929, 939; People v. Brisendine, 13 Cal.3d 528, 548-552, 119 Cal.Rptr. 315, 531 P.2d 1099; Burrows v. Superior Court, 13 Cal.3d 238, 245-246, 118 Cal.Rptr. 166, 529 P.2d 590; Mandel v. Hodges, 54 Cal.App.3d 596, 615-617, 127 Cal.Rptr. 244; State v. Kaluna, 55 Hawaii 361, 520 P.2d 51, 58-59; Baker v. City of Fairbanks, Alaska, 471 P.2d 386, 401-402; see generally Note, Project Report: Toward an Activist Role for State Bill of Rights (1973) 8 Harv.Civ.Rights Civ.Lib.L.Rev. 271; Falk, Foreword: The State Constitution: A More than “Adequate” Nonfederal Ground (1973) 61 Cal.L.Rev. 273; Note, Rediscovering the California Declaration of Rights (1974) 26 Hastings L.J. 481.)
It is an “incontrovertible conclusion that the California Constitution is, and always has been, a document of independent force. Any other result would contradict not only the most fundamental principles of federalism but also the historic bases of state charters.” (People v. Brisendine, supra, 13 Cal.3d 528, 549-550, 119 Cal.Rptr. 315, 328-29, 531 P.2d 1099, 1112-13.) We therefore must evaluate the rights infringed by section 1707.1 in light of our own Constitution.
Article I of the state charter is the California Declaration of Rights. Its first section establishes certain inalienable rights:
“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Emphasis added.)
“The (federal) Constitution does not explicitly mention any right of privacy.” (Roe v. Wade, supra, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147.) Neither did the California Constitution. However, “(i)n November 1972, the voters of California specifically amended article I, section 1 of our state Constitution to include among the various ‘inalienable’ rights of ‘all people’ the right of ‘privacy.’ ” (White v. Davis, 13 Cal.3d 757, 773, 120 Cal.Rptr. 94, 105, 533 P.2d 222, 233.)
The California Supreme Court first addressed the significance of the new provision in White v. Davis, supra, 13 Cal.3d 757, 773-776, 120 Cal.Rptr. 94, 533 P.2d 222. In that case the complaint asserted certain government surveillance and data-gathering activities abridged students' and teachers' constitutional right of privacy. In reversing a judgment entered upon the sustaining of a general demurrer, the court concluded the activities challenged did fall within the aegis of article I, section 1. The court “intimate(d) no opinion as to the resolution of the ultimate constitutional question after trial” (White v. Davis, supra, 13 Cal.3d 757, 776, 120 Cal.Rptr. 94, 107, 533 P.2d 222, 235), and did not purport to sketch “the full contours of the new constitutional provision.” (Id. at p. 773, 120 Cal.Rptr. at p. 105, 533 P.2d at p. 233.) Nevertheless, we are aided by its observations and analysis.
“The principal objectives of the newly adopted provision are set out in a statement drafted by the proponents of the provision and included in the state's election brochure.” (Id. at p. 774, 120 Cal.Rptr. at p. 105, 533 P.2d at p. 233.) This statement represents, in essence, the only “legislative history” of the constitutional amendment available (id. at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222), and “California decisions have long recognized the propriety of resorting to such election brochure arguments as an aid in construing legislative measures and constitutional amendments adopted pursuant to a vote of the people.” (Id. at fn. 11, 120 Cal.Rptr. at 106, 533 P.2d at 234.)
After review of the ballot statements, in White v. Davis, supra, 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222, the Supreme Court concluded:
“Although the general concept of privacy relates, of course, to an enormously broad and diverse field of personal action and belief, the moving force behind the new constitutional provision was a more focussed privacy concern, relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. The new provision's primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy.” (Id. at pp. 773-774, 120 Cal.Rptr. at p. 105, 533 P.2d at p. 233.)
The rights here relied upon by Privitera do not fall within that “more focused privacy concern” of White v. Davis, supra, 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222; but rather relates to the “enormously broad and diverse field of personal action and belief.” The state here does not seek to surveil or collect data about laetrile users or distributors. It seeks to circumscribe an even more profound compelling interest, that right which is but an “outward manifestation of the inward domain of the consciousness,” the right to be left alone.
To find the legislative intent of the people of the State of California in enacting the amendment to article I, section 1, we look to the language of the election brochure which extends beyond data collection into the broader area of freedom of personal action and belief. The argument in favor of the amendment stated:
“The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.
“ . . .
The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is compelling public need.“ (Emphasis added.)
The proponents of the amendment further stated (in rebuttal):
“The right to privacy is much more than ‘unnecessary wordage’. It is fundamental in any free society. Privacy is not now guaranteed by our State Constitution. This simple amendment will extend various court decisions on privacy to insure protection of our basic rights.” (Emphasis added.)
This “legislative history” closely parallels the thoughts uses the exact words of Justice Brandeis in his prescient dissent in Olmstead v. United States, supra, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944.[FN7]
Like Brandeis, the people of California have recognized the right to be left alone the right to be free in the sphere of private action. It is “fundamental.” It protects “our homes, our families, our thoughts, our emotions, our expressions, our personalities . . . .”[FN8]
Based upon the “legislative intent” derived from the express language of the election brochure we conclude a right, of California constitutional dimension, was enacted. This right is not just a shield against threats to personal freedom posed by modern surveillance and data-collecting activities. This state protected right of privacy encompasses a fundamental and compelling interest of the cancer patient to choose or reject his or her own medical treatment on the advice of a licensed medical doctor. This right can be abridged only where there is compelling need.
The Nature of the State's Interest
We have established this premise: The patient's and Dr. Privitera's rights of privacy are of such magnitude only a compelling state interest can justify intrusion in the patient-doctor treatment setting. We now consider the strength of that state interest. Does Health and Safety Code section 1707.1 serve a compelling state interest which overrides the rights so found?[FN9] Indeed, a state has a profound interest in maintaining medical standards and in protecting health, life. This justifies the testing and licensing of doctors and the limits on the giving of medical advice by qualified practitioners. The regulation of pharmaceuticals, the licensing requirements for pharmacists and other dispensers of drugs are so authorized. Harm to others is readily foreseeable. It is well settled the state has broad police powers in regulating the administering of certain types of drugs by the health professions. (See Robinson v. California, 370 U.S. 660, 664-665, 82 S.Ct. 1417, 1419-1420, 8 L.Ed.2d 758; Whipple v. Martinson, 256 U.S. 41, 45, 41 S.Ct. 425, 426, 65 L.Ed. 819; Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64.)
The cases cited by the People in support of this unquestioned power of the state uniformly involve drugs which are narcotic, habit forming, toxic in nature. For example, as noted in Whalen v. Roe, supra, the New York Legislature had enacted a statutory scheme regulating dangerous, legitimate, drugs such as opium, cocaine, methadone. The state could “prohibit entirely (their) use.” Therefore, the New York statute requiring the doctor to furnish the state with a copy of every prescription for such drugs did not unconstitutionally deprive a person of the right to decide independently with the advice of his physician to acquire or to use needed medication.
In Whipple v. Martinson, supra, 256 U.S. 41, 45, 41 S.Ct. 425, 426, 65 S.Ct. 819, the Supreme Court reiterated this premise when examining a California statute which regulated morphine stating:
“There can be no question of the authority of the state in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit-forming drugs, such as are named in the statute. The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.”
In Blinder v. Division of Narcotic Enforcement, supra, 25 Cal.App.3d 174, 181, 101 Cal.Rptr. 635, the authority of the State of California to regulate prescription by a doctor of a narcotic, habit forming, dangerous drug was vindicated. Plaintiff physician sought to prescribe the use of methadone as a necessary and effective method for the treatment of narcotic addiction. The statutes challenged by Dr. Blinder provided for treatment of addicts at certain places and specified periods of time and limited the use of methadone in the treatment of other diseases. The court in Blinder held the limitations upon the prescription of methadone for treatment of addicts (Health & Saf. Code ss 11391 and 11395) were an appropriate exercise of the police power of the state and did not constitute a denial of equal protection of the law or constitute cruel and unusual punishment. Concerning the right of the doctor to practice without state interference Blinder v. Division of Narcotic Enforcement, supra, 25 Cal.App.3d 174, at page 181, 101 Cal.Rptr. 635, at page 640, states:
“It is well established, moreover, that although the right to practice medicine, like the right to practice any other profession, is a valuable property right (citation), this right may not be exercised free of reasonable restrictions. ‘The state clearly has the power to regulate professions in the interest of public health, safety and welfare.’ (Citation.)”
It should be noted in Blinder, as in Whipple, as in Robinson, and in Whalen v. Roe, supra, the drugs subject to his broad police power are drugs which are dangerous drugs in the sense that they are narcotic, habit forming, hallucinatory or toxic. Their use or misuse “concerns others.” Laetrile is not in this class. It is generally conceded to be a harmless drug. Its alleged evil lies in its “ineffective” treatment of cancer.
The sole case authority submitted for the proposition that the state has the right under its police power to interfere in the doctor-patient relationship where the drug prescribed is amygdalin is People v. Privitera, 55 Cal.App.3d Supp. 39, 128 Cal.Rptr. 151, where the same Dr. Privitera was charged in the Municipal Court of Los Angeles with a series of misdemeanor violations of section 1707.1 (here charged as the substantive crime, the object of a felony conspiracy). The trial court there sustained defendant's demurrer on the ground section 1707.1 was unconstitutional. The Appellate Division of the Superior Court of Los Angeles County reversed and denied section 1707.1 was overbroad, arbitrary or unreasonable. It was within the constitutional power of the Legislature to prohibit the prescription of amygdalin for cancer treatment. For its authority the appellate division relied upon the cases we cite which warrant state intervention in the doctor-patient area in the control, distribution, use of narcotics and other dangerous drugs.
The Privitera court examined the procedure imposed by the Legislature for the prior administrative determination of whether the drug is recognized as safe and effective. For approval thereof, Privitera relies on the United States Supreme Court in Weinberger v. Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 619, 93 S.Ct. 2469, 2478, 37 L.Ed.2d 207, which held in passing upon the safety and efficacy of new drugs, strict scientific standards must be employed and not “anecdotal evidence indicating that doctors ‘believe’ in the efficacy of a drug.” Concerning the problem of whether the scientific and medical authorities are in dispute the appellate division stated:
“ ‘Where there is a genuine difference of medical opinion among the experts on the question of whether a drug is generally recognized as safe for the treatment of a particular disease, it must be concluded that the drug is not generally recognized as safe for the use in the treatment of that disease.’ (United States v. Article of Drug, etc. (N.D.Ga.1968) 294 F.Supp. 1307, 1311.)” (People v. Privitera, supra, 55 Cal.App.3d Supp. 39, 51, 128 Cal.Rptr. 151, 158.)
The appellate division examined the right of privacy question but found the state interest to be of such magnitude as to authorize prohibition of all treatment by physicians of cancer by any modalities other than “state sanctioned alternatives.” Said People v. Privitera, supra, 55 Cal.App.3d Supp. 39, 52, 128 Cal.Rptr. 151, 158:
“However, the California Legislature, in enacting the statutory scheme of cancer regulations, made the implicit finding that alleged but ineffective cancer remedies are more hazardous to the patient than the state-sanctioned alternatives. We believe such finding to be reasonable. One desperate for a cure but who seeks to avoid necessary surgery because it is disfiguring, necessary radiation because it is debilitating or necessary chemotherapy because it is toxic, might in his extremity employ substances which are represented to be both harmless and curative. Knowing such propensity of these seriously ill, the Legislature exercised its police power to protect its citizens from the allegedly easier but fallacious cure.” (Emphasis added.)
Reported cases specifically involving the authority, the right, of either the federal government or state to penalize, prohibit, amygdalin transportation, possession or use are rare. In Rutherford v. United States, D.C.Okl., 399 F.Supp. 1208, a class action was brought by cancer victims seeking to compel the Federal Drug Administration (FDA) to desist from precluding administration of amygdalin to patients suffering from cancer. By its nonaction, it was contended, the FDA made amygdalin not available. Rutherford sought medical advice in the United States. He was advised of the necessity of abdominal resection, removal of his rectum. He rejected these alternatives and sought laetrile treatment at a medical clinic in Tijuana, Mexico. There he was treated for a period of weeks and was returned as cured. He alleged without the continued use of the amygdalin he faced the prospect of escalation of the carcinoma.
The district court in Rutherford v. United States, supra, found that the FDA, under 21 U.S.C. section 355, had:
“. . . abdicated its duty to make a clear determination of whether the drug laetrile should or should not be placed in commerce though the drug has been in use for many years and thousands of persons have been treated with it.”
The court further found that from the records, testimony and exhibits that:
“. . . laetrile is not lethal in any sense of the word. It is not harmful to the human body and when used in proper amounts under proper control and supervision can effect relief from cancer disease to the satisfaction of many who are privileged to use the same.” (Rutherford v. United States, supra, 399 F.Supp. 1208, 1212.)
In view of this failure of the Federal Drug Administration to act in accordance with the constitutional intent, the court found that Rutherford and others were wholly without means or resources to comply with the provisions of 21 U.S.C. section 355(b)[FN10] , further that each of them was denied “the freedom of choice for treatment by laetrile to alleviate or cure their cancer.”
Basing its decision upon the Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, concept of the right of privacy as one of the rights formed by the emanations from the guarantees of the Fifth and Fourteenth Amendments, the court granted the requested injunctive relief.
Rutherford was reviewed sub nomine Stowe v. United States of America, 542 F.2d 1137 (10th Cir. 1976).[FN11] The court of appeals declined to review the district court's rulings laetrile was an effective treatment for cancer, was not toxic, and the new drug application provision, 21 U.S.C. s 355(a), was unconstitutional. Rather the court of appeals confined itself to the issue of whether the laetrile was a so-called “new drug” requiring FDA approval. The court of appeals held that the record made before the trial court was not sufficient but concluded the “preliminary injunction granted by the district court in this case should be and the same is upheld.” (Emphasis added.)
After remand to the district court in opinion filed January 4, 1977, it was held:
“In view, however, of the complete absence of any good-faith agency record in support of its position in this case, as the record here is not merely incomplete, but virtually nonexistent; and in appreciation of the fact that depriving a terminally ill cancer patient of a substance he finds therapeutic, whether such benefit is physical or psychological, creates the very real risk that irreparable injury might be sustained.”
The district court injunction remains in effect pending remand to the FDA.
In Carnohan v. United States of America, et al., United States District Court, Southern District of California (San Diego), Civil No. 77-0010-GT, plaintiff was a terminal cancer patient. He sought to enjoin the FDA's interference with his importation or interstate transportation of amygdalin for his own consumption.
The court found Carnohan was receiving laetrile in Mexico, and in order to receive the drug he must either choose to live in Mexico or he must commute daily for his treatment. The court weighed its basic authority for the issuance of injunctive relief against the harm to the public that could possibly occur by weakening laws calculated to prevent victimization of cancer victims by playing on their desperate need. The court observed where a person is terminally ill with cancer and unresponsive to other treatments:
“. . . the public harm is considerably reduced. Such a person would not be avoiding other methods of treatment generally (accepted) . . . .”
Thereupon the court enjoined the United States Customs Service from interfering in Carnohan's possession and moving in interstate commerce not in excess of a three-month supply of laetrile pending completion by the FDA of its study.
These judicially carved out exceptions to the federal prohibition against importation or interstate transportation of amygdalin rest upon an unarticulated premise. No compelling state interest required enforcement of the laetrile ban in the recited circumstances.
We turn now to the final, the pivotal question: Does the imposition of criminal sanction on the doctor for prescribing amygdalin as a cancer treatment for an informed consenting cancer victim, without first seeking governmental approval of its safety and effectiveness, serve a compelling state interest?
The Legislature has found the state's compelling interest derives from its “interest” in the “effective diagnosis, care, treatment or cure of persons suffering from cancer.” (Health & Saf. Code s 1700.) Further the Legislature found:
“. . . accurate and early diagnosis of may forms of cancer, followed by prompt application of methods of treatment which are scientifically proven . . . reduces the likelihood of death from cancer.”
The People argue these are compelling reasons to deny cancer victims the prescription by a doctor of as yet an unapproved drug.
Without question, Health and Safety Code section 1707.1 is an attempt at exercise of legislative power in the area of public health to protect the cancer victim. The legislative concern expressed in section 1700 reflects a well founded and appropriate concern for misleading and false claims of cures for cancer. The section states a truism when it finds:
“Various persons in this State have represented and continue to represent themselves as possessing medicines, . . . skills, . . . for the effective diagnosis, treatment, or cure of cancer, which representations are misleading to the public, . . . .”
However, upon what factual basis duly licensed doctors in the State of California are chargeable, let alone found guilty of the strictures made in the legislative finding is not clear. Why doctors, “recognized by the State as capable of exercising acceptable clinical judgment,” are honored by being encompassed within that invidious class of “various persons” who “mislead” the public is obscure.
“The . . . suggestion is necessarily somewhat degrading to the conscientious physician, . . . He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, . . . and needs.” (Doe v. Bolton, supra, 410 U.S. 179, 197, 93 S.Ct. 739, 750, 35 L.Ed.2d 201.)
The legislative finding gives no hint of what rational classification includes medical doctors within the ambit of quacks.
The doctor in California is licensed to practice only after meeting long rigid education, experience qualifications. He is bound by oath to preserve, to prolong, the life of his patient. He is under a legal duty, under threat of malpractice suit, to act in accordance with the generally accepted standards of medical practice in his community in this state. He is required under threat of malpractice to treat only after receiving the informed consent of the patient. (Cobbs v. Grant, supra, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1.) These are the “rational means” society through law has imposed to insure a high standard of performance by the California doctor. It follows after such rigid standards are met, the matter of choice of treatment of the informed consenting patient becomes “a purely medical determination, which is within a doctor's professional judgment.” (Aden v. Younger, supra, 57 Cal.App.3d 662, 677, 129 Cal.Rptr. 535, 545.)
“Reliance must be placed upon the assurance given by his license, . . . that he possesses the requisite qualifications.” (Dent v. State of West Virginia, 129 U.S. 114, 122-123, 9 S.Ct. 231, 233, 32 L.Ed. 623.)
Limiting this exercise of the doctor's professional judgment on some vague suspicion that “various persons” in this state are engaging in quackery does not follow as a matter of logic.
The premise that “various persons,” con man, snake oil salesman, have made or will make false and misleading representations to the public concerning the diagnosis, treatment and cure of cancer certainly warrants, as rational means, the law which prohibits and makes criminal such acts. Health and Safety Code section 1714 accomplishes this precise purpose. It prohibits a false representation with intent to defraud of any device or substance or treatment as an effective cure for cancer. Dr. Privitera does not contest the appropriateness of Health and Safety Code section 1714 as it does fit the announced legislative purpose.
We conclude the limitation upon the right to prescribe, to treat, of the doctor of section 1707.1 bears no logical relationship to the expressed legislative purpose. A fortiori, if there is a lack of reasonable relationship between the end sought and the means used, then certainly no compelling state purpose is present.[FN12]
Dr. Privitera is charged under Health and Safety Code section 1707.1. This statute requires for its breach an intent to prescribe the unauthorized drug or medicine for treatment of cancer. The efficacy of the treatment proposed or medicine prescribed is not an issue under this statute. The truth or veracity of the representations, disclosures, discussions, made in connection with the treatment, by the doctor to the patient are not an issue in a trial of charges made under section 1707.1.
The criminal liability attaches because the doctor in the exercise of his medical judgment has prescribed a drug for treatment of cancer not yet approved under section 505 of the Federal Food, Drug and Cosmetic Act or which has not yet received approval of the state board. Whether the doctor in his best medical judgment believes he has a miracle drug, a food supplement or a hope-giving placebo is not an issue. The governmental agencies have not given approval; therefore the doctor cannot prescribe.
The patient's right to receive medical care, and the doctor's right to administer it are substantially limited not because of some established defect in the medication, some danger to the public if this patient is so treated. The doctor becomes a criminal because the government agency has not given its prior approval to the exercise of his best medical judgment.
The statute must be measured against the legislative purpose of frustrating cancer quacks, and for the promotion of the early effective care, diagnosis and cure of cancer. Instead, the immediate and most direct effect of the prohibition of section 1707.1 is to chill, to prevent, innovative treatment by a licensed doctor, the person or in the class of persons most likely to make the hoped-for breakthrough against dreaded cancer. How logically this threat to the innovative physician will increase early effective diagnosis and cure of cancer is difficult to perceive.
People v. Privitera, supra, 55 Cal.App.3d Supp. 39 at page 52, 128 Cal.Rptr. 151 at page 159 of the supplement makes the following remarkable observation concerning that compelling state interest which supports Health and Safety Code section 1707.1:
“. . . ineffective cancer remedies are more hazardous to the patient than the state-sanctioned alternatives.” (Emphasis added.)
The Legislature has not made such an express finding and if such finding should be implied then it denies the patient the exercise of one of his most fundamental rights. He, instead, has the choice of “state sanctioned” treatment by the doctor or no treatment from the doctor at all. Again, if this be the legislative purpose, it misses its mark. Diminishing fraudulent cures, punishing quackery in cancer treatment, is a laudible objective. The means chosen by the Legislature is bureaucratically predetermined treatment or none, injected into a constitutionally protected area of privacy. This fundamental right of privacy, this right to be left alone, is “older than the Bill of Rights, older than our political systems.” It cannot be swept away, denied by the processes of compelled acceptance of “state sanctioned alternatives.”
It may be conceded that the dangers of treatment of cancer or of any serious and disabling disease by nonlicensed purveyor of medical services is fraught with dangers to the public and properly subject to legislative protection. Thus the difficulty with the statute as here applied is that it seeks to remedy the danger (that of a licensed medical doctor prescribing a treatment of a cancer patient without first getting approval of an administrative body) when that danger is not yet shown to exist.
If it be conceded section 1707.1 would theoretically assure some protection to the public or that unfortunate portion of the public who have cancer but who have not yet heard of the need for early treatment, by prohibiting the use of amygdalin or any other unapproved modality by the licensed physician, yet under the law of this state and the United States any individual can possess, use, self-treat, his condition, whatever it may be, by use of amygdalin, to his heart's content without liability.[FN13] In effect it turns the whole matter of treatment back to the cancer patient himself if he is unwilling to accept the “state sanctioned alternatives.”
We conclude not only is there no compelling reason shown to override the patient's or the doctor's fundamental right of choice in the treatment setting but that the statute when sought to be applied to a licensed medical doctor does not pass the test as a rational means of accomplishment of the announced legislative purpose.
There remains one further concern, the evidence in this case shows without exception the cancer victims, whether People's or defense's witnesses, were knowledgeable persons fully aware of the nature of the “state sanctioned alternatives” before seeking treatment from Dr. Privitera. Many were unwilling to accept the orthodox alternatives; many unwilling to accept the verdict of “terminal.” These are not wide-eyed country bumpkins seeking to be conned. The class actions filed against governmental authorities to compel the availability of the drug in question illustrate the desperate seeking of the cancer victims.[FN14] We need cite only one witness as a basis for a composite picture: The patient is a “senior” citizen with diagnosed cancer of the prostate; treatment recommended prostate removal and castration; female hormone treatment for the rest of his life. The victim simply refused to accept these alternatives and sought amygdalin treatment.
The nineteen witnesses testifying for Dr. Privitera conveyed a felt imminency of death. One senses a mortal fear of both the disease and the orthodox alternatives. This is a desperate utterly human seeking to avoid the pain and to prolong life. These elements form the unspoken rationale of the Rutherford and Carnohan decisions. Matter of Quinlan, supra, 70 N.J. 10, 355 A.2d 647, 663, states the premise eloquently:
“. . . no external compelling interest of the State could compel Karen to endure the unendurable, only to vegetate a few measurable months with no realistic possibility of returning to any semblance of cognitive or sapient life. We perceive no thread of logic distinguishing between such a choice on Karen's part and a similar choice which, under the evidence in this case, could be made by a competent patient terminally ill, riddled by cancer and suffering great pain; such a patient would not be resuscitated or put on a respirator . . . and a fortiori would not be kept against his will on a respirator.”
To these nineteen cancer victims the enforcement of Health and Safety Code section 1707.1, the denial to them of medical treatment albeit unorthodox, albeit unapproved by a state agency, must surely take on a Kafkaesque, a nightmare, quality. No demonstrated public danger, no compelling interest of the state, warrants an Orwellian intrusion into the most private of zones of privacy.
The state has in the name of protecting the cancer victim criminalized the doctor who is willing to innovate, willing to try an unapproved drug with the consent of his patient. From the terminal patient's viewpoint a new depth of inhumanity is reached by a broad sweep of this law so interpreted. No compelling interest of the state requires Dr. Privitera's nineteen cancer patients to endure the unendurable, to die, even forbidden hope.
Health and Safety Code section 1707.1 as here sought to be applied invades the patient's and the doctor's zone of privacy without showing of external compelling state interests in violation of the Fourteenth Amendment to the federal Constitution and article I, section 1 of the California Constitution.
The Search Warrant Issue
Defendants contend the trial court erred in denying their motion to suppress critical evidence obtained on execution of a telephonic search warrant.
On July 11, 1974, a California magistrate issued the contested telephonic search warrant directing Seth R. Nadel, a special agent with the United States Customs Service, to sign the magistrate's signature to the warrant, which he did.
California Penal Code section 1528(b) provides in pertinent part:
“The magistrate may orally authorize a peace officer to sign the magistrate's name on a duplicate original warrant. A duplicate original warrant shall be deemed to be a search warrant for the purposes of this chapter, and it shall be returned to the magistrate as provided for in Section 1537. In such cases, the magistrate shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant and the duplicate original warrant with the clerk of the court as provided for in Section 1541.”
Although a federal agent, Nadel does not qualify as a “peace officer” under California law. (People v. Lacey, 30 Cal.App.3d 170, 175, 105 Cal.Rptr. 72; People v. Yet Ning Yee, 145 Cal.App.2d 513, 516, 302 P.2d 616.) Hence, the search warrant was improperly issued and thus invalid. For,
“(b)ecause the proceeding by a search warrant is a ‘drastic one,’ whose abuse led to the adoption of the Fourth Amendment itself, legislation regulating the process must be liberally construed in favor of the individual affected. (Citations.) ‘. . . (E)very constitutional and statutory requirement must be fully met, including all formalities required by statute, before a valid search warrant may issue.’ (Citations.)” (Bowyer v. Superior Court, 37 Cal.App.3d 151, 164, 111 Cal.Rptr. 628, 636-37.) [FN15]
Defense counsel failed to raise this contention as a specific ground in their suppression motion made before trial.
Defendants contend this court is asked to decide a question of law only. Was Nadel a “peace officer” under the California Penal Code at the time he signed the magistrate's name on the duplicate original warrant? The general rule precludes appellate review on points not raised in the trial court. Where, however, the newly advanced theory presents only a question of law arising from facts which are undisputed, appellate review is authorized. (Roberts v. Roberts, 241 Cal.App.2d 93, 98, 50 Cal.Rptr. 408 (citations listed); Tyre v. Aetna Life Ins. Co., 54 Cal.2d 399, 405, 6 Cal.Rptr. 13, 353 P.2d 725.)
The facts set forth to obtain the telephonic search warrant show without qualification that Nadel was a United States Customs Service Special Agent. There is no evidence which contradicts or places this fact in issue. The People suggest a speculation Nadel may have become a California “peace officer” by a cross-deputization process. This argument is pure speculation and contrary to the facts appearing on the face of the document authorizing the search warrant.
U. S. v. Turner, supra, (D.C., Conn.) Crim.No. N-74-124, at page 3 (holding this very search warrant unlawfully issued) said:
“It is clear that, although Special Agent Nadel's duties as a federal officer closely parallel those of a california peace officer, Nadel is not a peace officer under California law.”
The Evidence Code section 353 requirement of a timely and specific objection is not a universal prohibition against appellate review. The Assembly Judiciary Committee comment following section 353 reads in pertinent part:
“Section 353 is, of course, subject to the constitutional requirement that a judgment must be reversed if an error has resulted in a denial of due process of law. People v. Matteson, 61 Cal.2d 466, 39 Cal.Rptr. 1, 393 P.2d 161 (1964).”
The admission of illegally obtained evidence violates the Fourth Amendment to the United States Constitution. The matter comes to this court as a matter of law of constitutional dimension. We conclude the search warrant was improperly issued. It was not signed by the issuing judge or a California peace officer on his behalf. The evidence should have been suppressed.
The right of a physician to administer drugs and the right of all individuals to import and distribute drugs which have not been approved as effective for the use intended and certified under procedures established by the Legislature are not in my opinion an incident of the constitutionally protected fundamental right of privacy. Moreover, I would take the position that even if there are fundamental rights involved in this case, the state's interest in controlling the distribution of ineffective drugs generally and laetrile particularly is sufficiently compelling to sustain the constitutionality of Health and Safety Code section 1707.1.
The state has broad police powers in regulating the administration of drugs by the health profession (see Robinson v. California (1962) 370 U.S. 660, 664-665, 82 S.Ct. 1417, 1419-1420, 8 L.Ed.2d 758; Whalen v. Roe (1977) 429 U.S. 589, 97 S.Ct. 869, 878, fn. 30, 51 L.Ed.2d 64; Blinder v. Division of Narcotic Enforcement (1972) 25 Cal.App.3d 174, 179-180, 101 Cal.Rptr. 635, 638-39). The authority for the state's regulation under its police power has been well defined in the law.
“ ‘ ”Police power is the power inherent in a government to enact laws, within constitutional limits, to protect the order, safety, health, morals, and general welfare of society.“ ‘ (Citations.) ’ ”To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public . . . require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.“ ‘ (Citations.)” (Blinder v. Division of Narcotic Enforcement (1972), supra, 25 Cal.App.3d 174, 179-180, 101 Cal.Rptr. 635, see also Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 875, fn. 20, 51 L.Ed.2d 64.)
In Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, 97 Cal.Rptr. 1, 5, 488 P.2d 161, 165 we are instructed:
“. . . . Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. (Citations.) Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. (Citations.) In other words, ‘we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited.’ (Citation.)
“Secondly, all intendments favor the exercise of the Legislature's plenary authority: ‘If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action. Such restrictions and limitations (imposed by the Constitution) are to be construed strictly, and are not to be extended to include matters not covered by the language used.’ (Citations.) . . . ”
Our first inquiry must be whether the state Constitution prohibits the Legislature from adopting Health and Safety Code section 1707.1.[FN1] The California Constitution neither expressly nor by necessary implication denies to the Legislature the power to enact section 1707.1. The majority asserts article I, section 1, states the right of “privacy,” an inalienable right of all the people, includes the right of choice of medical treatment. No constitutional provision expressly provides the right of choice of medical treatment as being reserved to the people. While the general concept of privacy relates, of course, to an enormously broad and diverse field of personal action and belief, from the ballot pamphlet arguments made with reference to the 1972 election in which the new constitutional provision for “privacy” was adopted, it is apparent the provision's primary purpose is to afford individuals some measure of protection against the threat made to personal privacy by increased surveillance and data collection activity in modern society (White v. Davis (1975) 13 Cal.3d 757, 773-774, 120 Cal.Rptr. 94, 533 P.2d 222). Surveillance and data collection activity bears little resemblance to free choice of one's use of drugs. To stretch the privacy right referred to in the California Constitution so as to deny the Legislature the right to proscribe the use of drugs not proven fit for the use intended violates the rule in Methodist Hosp. of Sacramento v. Saylor (1971), supra, 5 Cal.3d 685, 97 Cal.Rptr. 1, 488 P.2d 161, and ignores the legislative purpose intended by adoption of these laws, to protect the harassed and often desperate cancer victims (see Health & Saf. Code s 1700). The Legislature has the right to control distribution and use of drugs which are narcotic, habit forming, hallucinatory or toxic (Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 875, 878, 51 L.Ed.2d 64; People v. Nunn (1956) 46 Cal.2d 460, 469, 296 P.2d 813),[FN2] but to limit its power to just these kinds of drugs portends a frightening parade of horribles. Protection of public health, safety and welfare demands more.[FN3] Reasonable assurance the drug is safe and effective before allowing its widespread general public use has been the concern of Congress[FN4] as well as the state Legislature especially of recent years when revelation of some unusual side effects, and birth defects, were noticed after use of certain drugs enjoying substantial public acclaim.[FN5] The court should bear in mind that concern.[FN6]
To date the United States Supreme Court has denominated only certain activities within the protected realm of the fundamental privacy right[FN7] and, since Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, it has shown a disinclination to expand this right, even in an area closely connected to the matter of choice of medical treatment (Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 876-879, 51 L.Ed.2d 64, see also Planned Parenthood of Cent. Mo. v. Danforth (1976) 428 U.S. 52, 81, 96 S.Ct. 2831, 2846-2847, 49 L.Ed.2d 788; Paul v. Davis (1976) 424 U.S. 693, 713, 96 S.Ct. 1155, 1166-1167, 47 L.Ed.2d 405). In Whalen, supra, the Court upheld a state statute requiring physicians to report to a state agency the names and addresses of patients for whom the physicians had prescribed certain dangerous drugs. The patients contended, among other things, the statute invaded their constitutionally protected zone of privacy by depriving each of them of the right to decide independently, with the advice of the physician, to acquire and use needed medication. The court upheld the statute, citing cases using ordinary, not “compelling interest,” tests for the exercise of the police power (Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 878, fn. 30, 51 L.Ed.2d 64, see, e. g., Robinson v. California (1962), supra, 370 U.S. 660, 664-665, 82 S.Ct. 1417, 1419-1420, 8 L.Ed.2d 758), and it concluded the impact of the statute on either the reputation or the independence of patients for whom the specified drugs are medically indicated is not sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment. It held the physicians' claim is derivative from the patients' and must therefore fall along with the rejected patients' claim of protection.
The court in Whalen, supra, did not attach a right of privacy label to the rights there asserted and discussed, nor did it say it was not considering the rights as an incident of the right of privacy. It merely ruled on the basis the statute had minimal impact on “any” protected right or liberty. From the court's delineation of the particular areas of individual concern its past decisions had encompassed within the right of privacy (Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 876-877, fn. 26, 51 L.Ed.2d 64; see fn. 7, p. ——, above, from its citation of cases applying only the standard test for review of the police power (97 S.Ct. 869, 878, fn. 30)) and from its failure to mention the need for the state to show any “compelling” public need for the regulation in question. I cannot view the Whalen, supra, case as one attaching privacy right status to the patient's right there involved a right which as the majority opinion suggests, amounts to the same thing as the right of choice of medical treatment.
Roe v. Wade (1973), supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, and Doe v. Bolton (1973) 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, do not deal with a right of choice of treatment. They deal only with the right of a woman to decide whether to terminate her pregnancy without unwarranted state interference (Roe v. Wade (1973), supra, 410 U.S. 113, 155, 93 S.Ct. 705, 727-728, 35 L.Ed.2d 147; Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 879, fn. 33, 51 L.Ed.2d 64). It is an unreasonable extension of logic to attempt to use the cases dealing with the privacy right of choice to have an abortion, a medically approved procedure when performed during the appropriate time of pregnancy and by a licensed physician, to reach the distinguishable right of choice of the use of drugs which are not proven to be a medically effective treatment of cancer as represented.
In Bowland v. Municipal Court (1976) 18 Cal.3d 479, 134 Cal.Rptr. 630, 556 P.2d 1081, the court was faced with the argument a woman's liberty to choose whomever she wants to assist in the delivery during the birth of her child is a privacy right. Our Supreme Court denied relief to the plaintiffs, midwives charged with practicing medicine without a license (Bus. & Prof. Code s 2141), saying of their privacy assertions, at 18 Cal.3d page 495, 134 Cal.Rptr., at page 638, 556 P.2d at page 1089:
“. . . the right of privacy has never been interpreted so broadly as to protect a woman's choice of the manner and circumstances in which her baby is born. Indeed, Roe, supra (Roe v. Wade (1973) 410 U.S. 113, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147), appears specifically to exclude the right to make such choices from the constitutional privacy right. In Roe, the United States Supreme Court held expressly that the state may proscribe the performance of an abortion at any stage of pregnancy by a person who is not a licensed physician. (Roe, supra, at p. 165, 93 S.Ct. 705, 35 L.Ed.2d at pp. 183-184.) More significantly, the court held that at the point of viability of the fetus, the state's interest in the life of the unborn child supersedes the woman's own privacy right, and at that point (the beginning of the third trimester) abortion may be prohibited except where necessary for the preservation of the mother's life or health. (Roe, supra, at pp. 164-165, 93 S.Ct. 705 (35 L.Ed.2d at pp. 183-184); see also People v. Barksdale, supra, 8 Cal.3d 320, at p. 338, 105 Cal.Rptr. 1, 503 P.2d 257.)
“It is true that the Legislature has never attempted to require women to give birth in a hospital or with a physician in attendance, just as it has not generally sought to compel adults to obtain medical treatment. But the state has a recognized interest in the life and wellbeing of an unborn child. (Roe v. Wade, supra, 410 U.S. 113, at p. 165, 93 S.Ct. 705, 35 L.Ed.2d 147, at pp. 183-184; People v. Barksdale, supra, 8 Cal.3d 320, at p. 335, 105 Cal.Rptr. 1, 503 P.2d 257.) For the same policy reasons for which the Legislature may prohibit the abortion of unborn children who have reached the point of viability, it may require that those who assist in childbirth have valid licenses. Its interest in regulating the qualifications of those who hold themselves out as childbirth attenders is an equally strong one, for many women must necessarily rely on those with qualifications which they cannot personally verify. Nor is the state's interest in requiring a license diminished by the fact that childbirth with assistance, even the assistance of an unlicensed person, may be safer then self-delivery. The state need not prohibit the most unlikely of circumstances childbirth without assistance in order to justify regulating the much more common event assistance of the mother at childbirth. In the area of public welfare, the Legislature need not attack every social problem at once. (Dandridge v. Williams (1970) 397 U.S. 471, 486-487, 90 S.Ct. 1153, 25 L.Ed.2d 491, 502-503; People v. Barksdale, supra, 8 Cal.3d 320, at p. 338, 105 Cal.Rptr. 1, 503 P.2d 257.) . . .” (Bowland v. Municipal Court (1976), supra, 18 Cal.3d 479, 495, 134 Cal.Rptr. 630, 638, 556 P.2d 1081, 1089.)
Thus, the pregnant woman choosing her assistant in giving birth to the child is limited in her choice to the state-licensed physician.
Moreover, the Supreme Court has held a woman seeking an abortion during the first trimester of the pregnancy, the period in which the court found a narrowly drawn state regulation supported by compelling circumstances is the only type of regulation constitutionally permitted, is nevertheless properly subject to some limitations imposed by the state, namely, that any physician participant be state licensed (Roe v. Wade (1973), supra, 410 U.S. 113, 164-165, 93 S.Ct. 705, 732-733, 35 L.Ed.2d 147).
I would note in passing that some of the defendants here are unlicensed importers and distributors and the effect of the majority opinion would be to pass to them, too, the right to sell drugs not proven to be effective to meet the needs of the patient. They, too, would apparently acquire a derivative right to supply. The physician's right, if any he has, is of no greater strength than the patient's (Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 879, fn. 33, 51 L.Ed.2d 64). The patient has no expertise and deals with promoters who similarly have no special medical background. Must we sanction “clinical” experiments even in the absence of a physician? Here, Privitera's presence was required only because the drug required injection. The scheme presented by the facts of this case was for the doctor to refer his patients to distributors for the drugs and the distributors to refer cancer victims to the doctor to administer the drug, suggesting the patient has a minimal role in the operation from which the rights are derived. In any event, distribution of drugs by untrained and unlicensed persons must fall into a special category subject to state regulation (Bowland v. Municipal Court (1976), supra, 18 Cal.3d 479, 134 Cal.Rptr. 630, 556 P.2d 1081).
On the question of reliance on the Quinlan case (Matter of Quinlan, 70 N.J. 10, (1976) 355 A.2d 647), I must disagree with the majority opinion, too, since Quinlan was concerned with a patient's right to reject life support systems, a right to refuse proffered medical treatment of any life-giving type. Choice of medical treatment was not involved in Quinlan where the question involved a right to choose to die by rejecting any treatment at all. Here, by contrast, the patients and the others involved seek medical assistance by use of particular unorthodox procedures which have not been found fit for the use intended. I cannot view Quinlan as having any persuasive effect in this case.
The right of choice of medical treatment has no similarity to any of the privacy areas including the areas of marriage, procreation, contraception, family relationships, and child rearing and education, so far identified by the courts as subject to regulation only where compelling state interest exists because of the “fundamental” nature of those areas. The right we deal with here is unique. It is fraught with many and variable incidents beyond the influence of an individual's exercise of his right of choice of medical care, for that matter beyond the influence of any society's present ability to act. These variable incidents of the right relate to the nature and extent of the medical condition and to the medical, economic and educational resources available to the person immediately affected by the medical condition. Yet in the case of many cancer patients there are known medical treatments with proven medical effectiveness which provide in many cases a positive cure. Why is it a fundamental right to have unproven treatment when effective treatment may be available?
My concern with the majority view is not with the proposition we must place great importance upon the right of choice of medical treatment. My concern is that we give it so much importance we deny reason and the best medical judgment as the standard for health care. I cannot agree with the majority that Health and Safety Code section 1707.1 bears no logical relationship to its expressed legislative purpose of frustrating cancer quacks and promoting early effective care, diagnosis and cure of cancer.
Preventing the administration of ineffective treatment methods to sick persons, particularly those with a fear-inducing and desperation-producing illness such as cancer, is a reasonable legislative purpose. Taking legislative action to accomplish this purpose promotes the use of effective treatment methods to the end of the physical and economic well-being of all the people. The legislative action here under consideration, proscribing the administration of other than an effective cancer treatment method, operates to prevent the administration of ineffective cancer treatment methods. Thus, the legislation is reasonably related to a legitimate state objective.
This preventative legislative action naturally tends to enable many persons suffering from the ailment to get well by having effective treatment methods applied at an early stage. There are proven effective treatment methods for many forms of cancer particularly in cases of early detection. The Legislature has been made mindful of the human and economic waste attending a cancer patient's receipt of ineffective treatment and attending the offering of false hope to the frightened or desperate patient. I cannot charge wrongdoing by the manufacturers, distributors and physicians who may profit from the dispensing of laetrile if they merely provide hope to the terminally ill who have no recognized cure available[FN8] but there is a grievous wrong committed when they consciously or unconsciously deny proper treatment to those who could benefit by early effective treatment. Diverting the patient's attention and resources from use of an effective remedy at a time when the cancer might be cured under approved treatment programs is cruel and inhuman. Such a diversion is surely dangerous to the patient, at best giving him a gamble an unproven treatment might be effective and at worst resulting in wasted resources and death. There is also a wrong in taking money from patients for possibly worthless drugs, thereby unduly taxing cancer victims and also depriving them or their families of funds necessary for support.
These are legitimate, reasonable objectives for the exercise of the legislative power, promoting early effective cancer treatment and consumer protection. The legislative concern is expressed in the law:
“The effective diagnosis, care, treatment or cure of persons suffering from cancer is of paramount public importance. Vital statistics indicate that approximately 16 percent of the total deaths in the United States annually result from one or another of the forms of cancer. It is established that accurate and early diagnosis of many forms of cancer, followed by prompt application of methods of treatment which are scientifically proven, either materially reduces the likelihood of death from cancer or may materially prolong the useful life of individuals suffering therefrom.
“Despite intensive campaigns of public education, there is a lack of adequate and accurate information among the public with respect to presently proven methods for the diagnosis, treatment, and cure of cancer. Various persons in this State have represented and continue to represent themselves as possessing medicines, methods, techniques, skills, or devices for the effective diagnosis, treatment, or cure of cancer, which representations are misleading to the public, with the result that large numbers of the public, relying on such representations, needlessly die of cancer, and substantial amounts of the savings of individuals and families relying on such representations are needlessly wasted.
“It is, therefore, in the public interest that the public be afforded full and accurate knowledge as to the facilities and methods for the diagnosis, treatment, and cure of cancer available in this State and that to that end there be provided means for testing and investigating the value or lack thereof of alleged cancer remedies, devices, drugs, or compounds, and informing the public of the facts found, and protecting the public from misrepresentation in such matters.
“The importance of continuing scientific research to determine the cause or cure of cancer is recognized, and the department shall administer this chapter with due regard for the importance of bona fide scientific research and the clinical testing in hospitals, clinics, or similar institutions of new drugs or compounds.” (Health & Saf. Code s 1700.)
Section 1707.1 reasonably relates to these objectives.
In a case upholding regulations adopted under section 505 of the Federal Food, Drug and Cosmetic Act (21 U.S.C., s 355) pertaining to the scientific evidence necessary for a showing of a drug's effectiveness the United States Supreme Court observed the regulations' “strict and demanding standards, barring anecdotal evidence indicating that doctors ‘believe’ in the efficacy of a drug, are amply justified by the legislative history. The hearings underlying the 1962 Act (adding a showing of effectiveness of a drug as a prerequisite for permissible marketing of a new drug) show a marked concern that impressions or beliefs of physicians, no matter how fervently held, are treacherous.” (Weinberger v. Hynson, Westcott and Dunning, Inc. (1973) 412 U.S. 609, 619, 93 S.Ct. 2469, 2478, 37 L.Ed.2d 207). The court in the Hynson case further said:
“But Congress surely has great leeway in setting standards for releasing on the public, drugs which may well be miracles or, on the other hand, merely easy money-making schemes through use of fraudulent articles labeled in mysterious scientific dress. The standard of ‘well-controlled investigations' particularized by the regulations is a protective measure designed to ferret out those drugs for which there is no affirmative, reliable evidence of effectiveness. . . . ” (412 U.S. 609, 622, 93 S.Ct. 2469, 2479, 37 L.Ed.2d 207.)
“. . . . The ‘substantial evidence’ requirement reflects the conclusion of Congress, based upon hearings, that clinical impressions of practicing physicians and poorly controlled experiments do not constitute an adequate basis for establishing efficacy. . . .” (412 U.S. 609, 630, 93 S.Ct. 2469, 2483, 37 L.Ed.2d 207.)
In upholding the regulations it considered, the court in Hynson impliedly also upheld the statute on which the regulations were based, for the regulations could not stand without a valid underlying statute authorizing their adoption. The same concerns of Congress, cited in Hynson, no doubt motivated the California Legislature to enact Health and Safety Code section 1707.1 which, in part, adopts the same federal regulatory scheme of approval ruled on in Hynson, supra.
The majority tells us the effect of the prohibition of Health and Safety Code section 1707.1 is to chill innovative treatment by a licensed doctor. I cannot ignore the conclusion reached by Congress after its hearings that the clinical impressions and beliefs of practicing physicians are “treacherous,” are poorly controlled experiments and do not constitute an adequate basis for establishing efficacy. (Hynson, supra ). If we use the method of developing medical knowledge suggested by the majority opinion we discard the scientific approach thus opening the door to experimentation using a variety of disjointed cancer “treatments” of unproven or unprovable value, undocumented for general use and without control mechanisms. Better reasoning calls for an orderly collection of cancer treatment methods of scientifically proven worth before the public is used as the guinea pig. Certainly it is the research scientist, knowledgeable in the field and aware of related studies, who is the one to be given this freedom, not the manufacturer, distributor and general practitioner as the majority would advocate. Unrestricted sale and experimentation is one thing, scientific determination is quite another (see Weinberger v. Hynson, Westcott and Dunning, Inc. (1973), supra, 412 U.S. 609, 618-619, 93 S.Ct. 2469, 2477-2478, 37 L.Ed.2d 207.) The law provides a method of developing such research. The innovative physician is free to take advantage of Health and Safety Code section 1708 which establishes a means of conducting investigations into the safety and therapeutic value of a cancer drug, medicine, compound or device without fear of penalty (see also 21 U.S.C., s 355(i); 17 Cal.Adm. Code s 10401.1).
I am compelled, too, to respond to the majority's position the “rational means” the state has adopted to insure a high standard of performance by the California doctor consist of the physicians' obtaining necessary qualification for a license to practice medicine and his duty, under threat of a malpractice suit, to act in accordance with the generally accepted standards of medical practice in his community. I agree these are rational methods designed to achieve the desirable end of high medical standards. They are not, however, the only means which we have available for guaranteeing the public well-being. They do not address themselves readily to the specific problem of the prevention of quackery in cancer treatment. There is ample evidence available to show a well-meaning licensed medical practitioner can innocently become an instrument of a drug promotion program without intent to jeopardize the public health and safety. In fact, a licensed medical doctor administering unproven cancer cures which do not work may likely have a more deadly impact on the public health than the nonlicensed promoter. This is so because “the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process . . . .” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242, 104 Cal.Rptr. 505, 513, 502 P.2d 1, 8.) A patient in these circumstances of trust is likely to stay with the physician to the end. When the end is a needless death, an unnecessarily shortened life or a prolonged illness, the remedies of malpractice or license revocation take on a hollow ring to the patient or his heirs. Criminal sanctions provide a strong deterrent to the promotion of such ineffective remedies and physicians have no special right to avoid the additional sanction which the Legislature has imposed. Health and Safety Code section 1707.1 takes such a deterrent approach.
The state's interest in the life and health of a cancer victim, from the onset of the disease, is surely as “important and significant” as its interest in the health of a pregnant woman and her baby after the first trimester of the pregnancy (see Roe v. Wade (1973), supra, 410 U.S. 113, 159, 163, 93 S.Ct. 705, 730-732, 35 L.Ed.2d 147). Both involve the lives of persons. The “compelling” point of this interest in the case of a cancer victim must be viewed as beginning at least as soon as the time of first detection of the disease, for that is the point of highest likelihood of success from “application of methods of treatment which are scientifically proven” (Health & Saf. Code s 1700). The danger to the life and health of the cancer victim increases as time passes without the administration of proven treatment methods. Thus, even assuming a “fundamental” right analysis were called for here, the Health and Safety Code section 1707.1 regulation can be sustained by a showing of a compelling state interest in the health and life of a cancer victim from the moment of first detection of the disease. The section, moreover, is drawn in a sufficiently narrow manner to express only the legitimate state interest in the life and health of the cancer victim by promoting the early use of scientifically proven treatment methods and preventing the readily apparent dangers of loss of life and health of these persons due to application of unproven “remedies.” (See Roe v. Wade (1973), supra, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147.)
Viewing the case from the approach required by Methodist Hosp. of Sacramento v. Saylor (1971), supra, 5 Cal.3d 685, 691, 97 Cal.Rptr. 1, 488 P.2d 161, and testing the statute by the rule summarized in Blinder v. Division of Narcotic Enforcement (1972), supra, 25 Cal.App.3d 174, 179-180, 101 Cal.Rptr. 635, I agree with the conclusion reached by the Appellate Department of the Los Angeles Superior Court in People v. Privitera (1976) 55 Cal.App.3d Supp. 39, 128 Cal.Rptr. 151 (involving the same defendant as in this case), and would uphold the statute as a reasonable exercise of the police power.
Finally, as to the alleged illegal search and seizure asserted by Privitera, People v. Talley (1967) 65 Cal.2d 830, 837, 56 Cal.Rptr. 492, 423 P.2d 564, in a similar search and seizure assertion context, sets forth the rule that a search and seizure issue may not be raised for the first time on appeal. Privitera's attack on the warrant was not raised below and is in this category. The alleged illegal search is predicated on the fact the telephonic warrant was signed by a federal customs agent for the magistrate, rather than a “peace officer” as required by statute. The investigation here was a joint state and federal operation and it is not uncommon in these cases for the agents to deputize each other. Had the issue been raised below the trial court might have been provided evidence of his authority so we would have a record to support the due issuance of the warrant. A conclusion the officer was not a “peace officer” and the warrant is therefore illegal, is totally speculative. There is reason for the rule set out in Talley, supra, and I believe we should follow it (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, see also People v. Robinson (1965) 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. McDowell (1972) 27 Cal.App.3d 864, 879, 104 Cal.Rptr. 181).
1. Health and Safety Code section 1707.1 provides:“The sale, offering for sale, holding for sale, delivering, giving away, prescribing or administering of any drug, medicine, compound or device to be used in the diagnosis, treatment, alleviation or cure of cancer is unlawful and prohibited unless (1) an application with respect thereto has been approved under Section 505 of the Federal Food, Drug and Cosmetic Act (21 USCS s 355), or (2) there has been approved an application filed with the board setting forth:“(a) Full reports of investigations which have been made to show whether or not such drug, medicine, compound or device is safe for such use, and whether such drug, medicine, compound or device is effective in such use;“(b) A full list of the articles used as components of such drug, medicine, compound or device;“(c) A full statement of the composition of such drug, medicine, compound or device;“(d) A full description of the methods used in, and the facilities and controls used for, the manufacture, processing and packing of such drug, medicine or compound or in the case of a device, a full statement of its composition, properties and construction and the principle or principles of its operation;“(e) Such samples of such drug, medicine, compound or device and of the articles used as components of the drug, medicine, compound or device as the board may require; and“(f) Specimens of the labeling and advertising proposed to be used for such drug, medicine, compound or device.”
2. In Morris L. Ernst's and Alan U. Schwartz's Privacy: The Right To Be Left Alone (The MacMillan Co. 1962), the history and broad sweep of this doctrine is documented.Samuel D. Warren and Louis D. Brandeis, in The Right to Privacy (1890), 4 Harvard Law Review 193, state:“ . . . it has been found necessary from time to time to define anew the exact nature and extent of such protection.”
3. Health and Safety Code section 1700 provides:“The effective diagnosis, care, treatment or cure of persons suffering from cancer is of paramount public importance. Vital statistics indicates that approximately 16 percent of the total deaths in the United States annually result from one or another of the forms of cancer. It is established that accurate and early diagnosis of many forms of cancer, followed by prompt application of methods of treatment which are scientifically proven, either materially reduces the likelihood of death from cancer or may materially prolong the useful life of individuals suffering therefrom.“Despite intensive campaigns of public education, there is a lack of adequate and accurate information among the public with respect to presently proven methods for the diagnosis, treatment, and cure of cancer. Various persons in this State have represented and continue to represent themselves as possessing medicines, methods, techniques, skills, or devices for the effective diagnosis, treatment, or cure of cancer, which representations are misleading to the public, with the result that large numbers of the public, relying on such representations, needlessly die of cancer, and substantial amounts of the savings of individuals and families relying on such representations are needlessly wasted.“It is, therefore, in the public interest that the public be afforded full and accurate knowledge as to the facilities and methods for the diagnosis, treatment, and cure of cancer available in this State and that to that end there be provided means for testing and investigating the value or lack thereof of alleged cancer remedies, devices, drugs, or compounds, and informing the public of the facts found, and protecting the public from misrepresentation in such matters.“The importance of continuing scientific research to determine the cause or cure of cancer is recognized, and the department shall administer this chapter with due regard for the importance of bona fide scientific research and the clinical testing in hospitals, clinics, or similar institutions of new drugs or compounds.”
4. People v. Privitera, 55 Cal.App.3d Supp. 39, 128 Cal.Rptr. 151, infra.
5. Soviet geneticist T. D. Lysenko, controversial dictator of “communistic” biology during the Stalin period, stultified the science of genetics in the U.S.S.R. for at least a generation. He imposed the “state sanctioned alternative,” the curious idea that environmentally acquired characteristics of an organism could be transmitted to the offspring through inheritance. Thus, the Stalinist concept of ideological conformity politically implanted in genetics paralyzed this important branch of Soviet science.
6. Lest the reader suspect, these conclusions are alarmist, without relevance to here and now, reference is made to Drug Regulation and Innovation Empirical Evidence and Policy Options, by Henry G. Grabowski (1976). This is a summary of studies made cost versus benefit analysis of the effects of the 1962 amendment which clothed the Federal Drug Administration with the authority to test new drugs for their “effectiveness” before permitting general prescription and use.One study surveyed was that by Sam Peltzman. He researched the effect of the 1962 amendment on drug innovation:“In effect, Peltzman's . . . suggests that the rate of innovation in the post-amendment period is more than halved as a result of the 1962 amendments.”Did the Federal Drug Administration effectively weed out ineffective drugs? Peltzman's study shows:“. . . analysis of evaluations by medical experts suggests that the proportion of ineffective drugs has remained roughly the same in the pre-1962 and post-1962 periods. Given that the rate of new drug introductions was more than halved in the post-amendment period, his analysis therefore suggests that a large decline took place in effective drugs.” (Emphasis added.)The conclusion reached by Professor Grabowski:“A consistent finding is that regulation has had a significant negative effect on the rate of innovation. While each of the individual studies has shortcomings, taken together they would seem to provide considerable support for the hypothesis that regulation has been one of the principal factors responsible for the observed decline in innovation.”Professor Grabowski's study shows:“An indication of the change is the decline in discovery and development of new chemical entities by U.S. firms an initial decline from more than one-third of worldwide introductions in the year before the 1962 amendments to the Food, Drug, and Cosmetic Act to less than one-quarter of the total in 1963 . . . and unfortunately, as Professor Grabowski shows, a continued erosion of U.S. leadership thereafter. We have reached the point where innovations based on discoveries by U.S. firms and institutions constitute less than one-sixth of worldwide introductions of new chemical entities . . . and exports of pharmaceuticals as a share of U.S. exports have declined by one-third since the 1950s.”Decline in innovation is bad enough yet the public's safety has not been enhanced. According to Professor Grabowski:“One of the bitter ironies of this situation is that the 1962 amendments were spurred by an alarm over the safety of new drugs by the fears created by the thalidomide incident. The irony lies in the fact that the 1962 amendments are keeping off the market new drugs that are safer than the drugs they would replace. Professor William Wardell's study of the lags in the introduction of new drugs in the United States cites, as one example, the five-year delay in the appearance on the U.S. market of a benzodiazepine hypnotic. If it had been available in the United States as it was in Great Britain during those five years, Professor Wardell estimates that 1,200 lives would have been saved. 5 ”“ 5 William M. Wardell, ‘Therapeutic Implications of the Drug lag,’ Clinical Pharmacology and Therapeutics, vol. 15, no. 1 (January 1974), p. 83.” (Henry G. Grabowski, Drug Regulation and Innovation Empirical Evidence and Policy Options, p. 2.)“
7. As if he had this case in mind, Brandeis insightfully cautioned:“Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” (Olmstead v. United States, supra, 277 U.S. 438, 479, 48 S.Ct. 564, 572-573, 72 L.Ed. 944; Brandeis, J., dissenting.)
8. Philosopher John Stuart Mill in his classic work On Liberty (George Routledge 1905) sets forth the philosophic underpinnings for this recently enunciated right to be left alone:“(T)here is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person's life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance; for whatever affects himself may affect others through himself; . . . . This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. . . . Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. . . .“. . . The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.”Mill concludes “over himself, over his own body and mind, the individual is sovereign.” (Pp. 13-18.)
9. John Stuart Mill, On Liberty, supra, gives substance to the concept of “compelling state interest” when he asserts:“. . . one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”
10. 21 U.S.C. section 355 provides in part:“(a) No person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed pursuant to subsection (b) of this section is effective with respect to such drug.”
11. Stowe was the original plaintiff in the Rutherford case. He was a cancer patient and died in the pending of the suit. Rutherford and Mrs. Schneider filed further papers in the proceedings. Mrs. Schneider, Rutherford's coplaintiff, died before the hearing on the preliminary injunction which was issued by the district court.
12. Refusing enforcement of Health and Safety Code section 1707.1 is totally compatible with (1) compulsory vaccination, (2) fluoridation of public water supplies, (3) requiring that certain drugs be available to the public on prescription from a licensed doctor, and (4) recognition of a compelling state interest in the health of a prospective mother at approximately the end of the first trimester of pregnancy. (Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 731, 35 L.Ed.2d 147.) Philosopher Mill precisely located the line of demarcation between the individual's control of himself, his own body and mind, and the sovereignty retained by the state saying “there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest.” (John Stuart Mill, On Liberty, supra.) The much quoted Holmes' observation that freedom of speech does not encompass the right to shout fire in a crowded theater rests upon the readily recognizable danger to society and thus authorizes state intervention. Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, is a classic example of a silent application of the Mill reasoning by the United States Supreme Court in delineating the line between the mother's control over her own body and a public interest when there is another life and being.
13. See Ellen S. Hodgson, infra, p. 687, fn. 240, pointing out this incongruity. The smuggler of laetrile:“. . . faced a $10,000 fine and five-year prison sentence the maximum penalty imposed for smuggling an illegal drug intended for resale in the United States. See 18 U.S.C. s 545 (1970). That only the supplier, not the possessor, of laetrile is subject to criminal prosecution is due to the fact that the drug is not classified as a ‘controlled’ substance like heroin or marijuana the possession of which is illegal. However, because the FDA has not officially recognized the drug as ‘safe,’ it cannot be brought into the country or transported across state lines.”
14. See Ellen L. Hodgson, “Restrictions on Unorthodox Health Treatment in California A Legal and Economic Analysis,” 24 U.C.L.A. Law Review 647, 683, 689, for an excellent and exhaustive review of case and statutory law.
15. See U. S. v. Turner (D.C., Conn.) Crim.No. N-74-124, filed October 5, 1976, where the court granted a motion to suppress the evidence seized under the search warrant here in controversy based upon the identical contention.The United States Court of Appeal, Second Circuit, reversed the district court's ruling in U. S. v. Turner, supra, Crim.No. N-74-124, June 2, 1977, holding in a federal prosecution, federal law determines whether suppression is authorized. The court commented:“. . . a violation of the state telephonic search warrant procedures, even if such a violation would result in suppression in the California court, as the district court predicted, would not necessarily require suppression in federal court.” (Slip opinion, p. 3974.)The court then upheld the issuance of the search warrant in that it complied with both rule 41 of the Federal Rules of Criminal Procedure and the Fourth Amendment.
1. Health and Safety Code section 1707.1 reads as follows: “The sale, offering for sale, holding for sale, delivering, giving away, prescribing or administering of any drug, medicine, compound or device to be used in the diagnosis, treatment, alleviation or cure of cancer is unlawful and prohibited unless (1) an application with respect thereto has been approved under Section 505 of the Federal Food, Drug and Cosmetic Act, or (2) there has been approved an application filed with the board setting forth:“(a) Full reports of investigations which have been made to show whether or not such drug, medicine, compound or device is safe for such use, and whether such drug, medicine, compound or device is effective in such use;“(b) A full list of the articles used as components of such drug, medicine, compound or device;“(c) A full statement of the composition of such drug, medicine, compound or device;“(d) A full description of the methods used in, and the facilities and controls used for, the manufacture, processing and packing of such drug, medicine or compound or in the case of a device, a full statement of its composition, properties and construction and the principle or principles of its operation;“(e) Such samples of such drug, medicine, compound or device and of the articles used as components of the drug, medicine, compound or device as the board may require; and“(f) Specimens of the labeling and advertising proposed to be used for such drug, medicine, compound or device.”
2. The Legislature, it must be observed, is the body empowered to decide in the first place whether a particular substance has a deleterious effect, in the second place, whether the substance with that effect should be subject to some form of proscription in the interest of the public health, safety or welfare and, in the third place, what form of proscription should apply to various transactions relating to the substance. The majority opinion expresses no quarrel with the view and apparently agrees with it insofar as it concerns those substances the Legislature has decided are dangerous because of their narcotic, habit forming, hallucinatory or toxic nature. I do not believe the Legislature's decision-making power as to the “danger” of a substance is limited to those four bases.
3. Vaccination : Compulsory vaccination statutes represent a significant intrusion upon personal autonomy and yet have been properly upheld as not violative of United States constitutional rights (Jacobson v. Massachusetts (1905) 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643). The compelling state interest, of course, is to prevent spread of disease. I would be concerned if the Legislature loses the power to protect that segment of the public.Fluoridation : Fluoridated water is not forced on anyone but obviously people dependent on public water supply must ingest it. The public entity's right to fluoridate public water supplies has been upheld (Minn. State Bd. of Health v. City of Brainerd, Minn., 241 N.W.2d 624).Antibiotics : It is generally known that widespread use of antibiotics may result in harmful side effects but more importantly can produce new strains of diseases which are immune from the effects of the drug. Limiting one's freedom of choice of such drugs through distribution on prescription only represents a reasonable and proper control.
4. Food, Drug and Cosmetic Act of 1938, 21 U.S.C. s 321, amended in 1962 (P.L. No. 87-781), 76 Stats. 781, codified in 21 U.S.C. ss 301-392, for example, requires a showing of adequate and well controlled clinical investigations on proof of safety and efficacy, prior to shipment in interstate commerce (s 355 of the Act). Intended use of a substance, not just the inherent properties or dictionary definition, was held a proper subject of control whether evidenced by labels, promotional material or word of mouth representations. (United States v. Nutrition Service, Inc., D.C.Pa., 227 F.Supp. 375, 380).
5. See 14 U.S.D. Law Review 378, Government Regulation of Health Care Drugs of Questionable Efficacy. Consider the tragic deformations connected with the use of Thalidomide by pregnant women during the 1960's. See Health and Safety Code section 26000, etc., and particularly section 26670 enacted in 1970.
6. Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 875, 51 L.Ed.2d 64 reminds us:“. . .. State legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part. (‘We are not concerned, however, with the wisdom, need, or appropriateness of the legislation.’ Olsen v. Nebraska ex rel. Western Reference and Bond Assn., 313 U.S. 236, 246, 61 S.Ct. 862, 865, 85 L.Ed. 1305.) . . . individual States have broad latitude in experimenting with possible solutions to problems of vital local concern. (Mr. Justice Brandeis' classic statement of the proposition merits reiteration: ‘To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens chose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.’ New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-387, 76 L.Ed. 747 (dissenting opinion) (footnote omitted).)” (Footnotes connected to text of opinion are shown in brackets.)
7. The United States Supreme Court has characterized its rulings involving the privacy interest in independence in making certain kinds of important decisions as dealing with “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States' power to substantively regulate conduct.” (Paul v. Davis (1976) 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405; see also Whalen v. Roe (1977), supra, 429 U.S. 589, 97 S.Ct. 869, 876-877, fn. 26, 51 L.Ed.2d 64.)
8. Making a distinction between the curable and noncurable persons being treated might be an appropriate matter for special consideration by the Legislature (see S.B. 245, 1977 Session of the Cal. State Legislature).
STANIFORTH, Associate Justice.
GERALD BROWN, P. J., concurs.