Forcible Medication

Constitutional Bases for the Right to Refuse Medication

Constitutional limits on involuntary intrusive treatment of the kind represented by the psychotropic drugs derive from several sources. The U.S. Supreme Court has recognized that unwanted antipsychotic medication invades a significant liberty interest protected by the due process clauses of the Fifth and Fourteenth Amendments. Substantive due process protects a liberty interest in bodily integrity and personal security, as well as a liberty interest in personal autonomy in health care decision making that involuntary medication would invade. Moreover, such medication also may invade the First Amendment's protection of mental privacy and freedom of mental processes from significant governmental intrusion. When administered as punishment, involuntary medication may also raise questions of cruel and unusual punishment banned by the Eighth Amendment. Moreover, because medication is not administered on an involuntary basis to medically ill patients, for whom informed consent would be required, but is for those with mental illness, an equal protection question may be raised. In more limited circumstances, when refusal of medication is based on religious objection, forced medication may infringe the First Amendment's protection of the free exercise of religion.

The level of constitutional scrutiny of governmental attempts to impose involuntary treatment will vary with the intrusiveness of the treatment in question. Traditional antipsychotic drugs can induce a variety of Parkinson-like effects that are distressing and several serious and permanent effects such as tardive dyskinesia. Even the newer atypical antipsychotic drugs impose serious risks, including diabetes and perhaps stroke. Although drugs used in the treatment of depression and bipolar disorder may raise fewer constitutional difficulties, their impact on mood and mental processes remains sufficiently significant to require some degree of heightened judicial scrutiny. Almost all these drugs intrude directly and powerfully into mental processes, bodily integrity, and individual autonomy and therefore would seem justified only on a showing of compelling necessity.

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