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Informed Consent, Prisoners, Substantive Due Process, Health Law


White v. Napoleon and its progeny recognize a substantive due process right to receive the disclosure of medical treatment information. While each case involves a prisoner receiving treatment while in custody, the constitutional right described in those cases is not limited to prisoners. Instead, the right is described as belonging to all individuals. Consequently, this line of cases is poised to interfere with the disclosure standards that operate in state informed consent law in the many instances where state action exists. This Article argues that the substantive due process right recognized in White should be overturned. The right is based on an erroneous assumption that the Constitution protects an interest in autonomous medical decision-making rather than simply an interest in avoiding a battery. It also will erode valuable heterogeneity in state disclosure standards and subject those standards to the politics of substantive due process. Third, it is not necessary. Other means exist to protect the interest of prisoners in receiving material treatment information and to address states with uniquely inadequate disclosure standards.