Judicial Interference --- Justified Paternalism?

Nelson Borelli, MD
Article Type: 
July/August 1999
Volume Number: 
Issue Number: 

Dear Editor,
Many thanks to Mr. Andrew L. Schlafly, Esq. for the lucid discussion on the "Judicial Interference With the Right to Contract," (Medical Sentinel, March/April 1999). He (and rightly so) denounces the Judiciary's support for the government's interference in private contracting as "judiciary activism." That "interference" is just one of the many paternalistic actions of government which have been growing in the last few decades. We in the medical profession have been up in arms about this outrageous interference by third parties such as Medicare in the contractual relationship between patients and physicians.

My question to Mr. Schlafly, the Medical Sentinel and the medical profession is: Whose fault is it? Who justified paternalism? The answer is: not the government nor the politicians. Surely the politicians welcomed it wholeheartedly and applied with gusto, but it was the medical profession which justified and cultivated the paternalistic ideology. The "Mental Illness" ideology is the cornerstone of such justification. The basic tenet of the "mental illness" ideology is that a person, due to some kind of neuropathology, may loose her/his moral sense. For example: Senator Goldwater's political position was due to his "mental illness"; John Hinckley Jr., due to his "mental illness," did not know that shooting the president was wrong. Compulsory compassion and help for the "mentally ill" and the "mentally ill --- to be," became the natural consequence of such ideology. The medical profession has gone along with the "mental illness" fiction in spite of the mountains of ridiculous cases reported daily and in spite of the abundance of critical literature; the best example of which is the voluminous published work of Thomas S. Szasz, M.D. The "mental illness" ideology is not circumscribed to the so-called mentally ill persons, but it is a virulent, totalitarian concept that applies to all citizens. Let's look at our own house before we try to re-invent the wheel.

Nelson Borelli, MD
Northwestern University


Mr. Schlafly Responds:

Dear Editor,
Dr. Borelli is correct in describing judicial activism as "just one of the many paternalistic actions of government." It is humorous to note, however, that liberals now consider the word "paternalistic" to be derogatory. This term is being replaced by "compassionate."

Liberal nomenclature aside, judicial activism predates modern medicine. The Bill of Rights was partly an effort to curtail the arbitrary power of judges in Colonial America. See U.S. Constitution, Amendments IV-VIII.

Andrew L. Schlafly, Esq.
Wayne, NJ


Dr. Orient Responds:

Dear Editor,
I agree with Dr. Borelli. But I think the complicity of the medical profession extends far beyond the mental illness concept. Organized medicine is heavily promoting very intrusive legislation called a "Patients' Bill of Rights" that purports to "guarantee" the "quality of care" and the competence of physicians. This all assumes a disinterested omniscient elite that can pass enlightened judgment on everything. So both physicians and patients come under the umbrella of paternalism. There is no freedom without responsibility.

Jane M. Orient, MD
Tucson, AZ

Correspondence originally published in the Medical Sentinel 1999;4(4);117-118. Copyright©1999 Association of American Physicians and Surgeons (AAPS).

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