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No More Constitutional Right to Take Drugs?:
Over at the invaluable How Appealing, Howard relays news that the DC Circuit granted en banc rehearing today in the Abigail Alliance case, which had found a fundamental constitutional right "for mentally competent, terminally ill adult patients to access potentially life-saving post-Phase I investigational new drugs, upon a doctor's advice, even where that medication carries risks for the patient." I blogged about the case here back at my solo blog, and Jonathan Adler's post on the case is here.
Lior:
While not as serious this reminded me of the recently proposed ban on restaurants using trans-fats in Cambridge, MA.
11.21.2006 8:42pm
Lior:
Of course I meant that a ban on trans fats is not as serious as preventing terminally ill patients from using experimental treatments.
11.21.2006 8:45pm
Realist Liberal:
Lior~
I fail to see the connection between a group of terminally ill patients claiming a Constitutional right to take medications that are not done with FDA testing and a city that wants to ban trans fat. Are you suggesting that if there is a Constitutional right for the medications then there is a similar right to have trans fat? (I'm not trying to be sarcastic I'm being honest that I don't see the connection.)
11.21.2006 9:58pm
PersonFromPorlock:
RL, I think Lior's saying that both reflect a fundamental right to do as you please so long as you hurt no one else. This isn't really a Constitutional right but a natural right which underlies the Constitution.

The argument isn't likely to prosper; courts react to arguments based on natural rights exactly as well-bred people everywhere react to a fart in an elevator.
11.21.2006 11:22pm
Speaking the Obvious:
Although OK isn't, in his title, referring to a Constitutional right to take ANY AND ALL drugs one desires (i.e., without a doctor's prescription, for recreational as well as medical purposes), and although PFP would (and I agree) see this as a natural right rather than a Constitutional right, I've never understood that for the following reason.

Did Americans have a Constitutional right to drink alcohol (never specifically listed in the Constitution)? Less than 100 years ago, people must have thought so, since they felt it necessary to amend the Constitution to prohibit it. They never amended the Constitution to prohibit drug taking. They simply outlawed it.
11.21.2006 11:41pm
lv:
A commentor at your old blog tried to post a comment sensibly predicting that the DC Circuit would go en banc. Strange that speculation about en banc decisions should receive different treatment than speculation about how the Supreme Court will decide cases. This move by the DC Circuit was obvious months ago.
11.21.2006 11:41pm
Matt Tievsky (mail):
Speaking the Obvious: Did Americans have a Constitutional right to drink alcohol (never specifically listed in the Constitution)? Less than 100 years ago, people must have thought so, since they felt it necessary to amend the Constitution to prohibit it. They never amended the Constitution to prohibit drug taking. They simply outlawed it.

I believe the reason for the Eighteenth Amendment was not to override some constitutional right to drink alcohol under federal law, but rather to newly empower Congress to ban intrastate alcohol manufacture and trade. Back then, people did not think that Congress's power to regulate interstate commerce extended to goods produced and consumed within a single state. Now we know better.
11.22.2006 12:34am
Speaking the Obvious:
MT clarifies for me the thinking behind the 18th Amendment, and I hesitate to disagree, since I am not a lawyer and unstudied in this area. It does seem strange, though, does it not (I ask, sincerely) that if Congress desired to expand its power to regulate interstate trade to intrastate trade, it so clearly specified alcohol. I mean, was it Congress' intent to further amend the Constitution every time a new product traded solely intrastate came to their attention ripe for regulation? Granted, it works more simply now, since the Supremes have explained that "interstate" means "between states or within a single state".
11.22.2006 1:09am
Nels (mail):

PersonFromPorlock: says

The argument isn't likely to prosper; courts react to arguments based on natural rights exactly as well-bred people everywhere react to a fart in an elevator.


that explains why us uncouth common thinkers stick to the argument. its funny every time...
11.22.2006 8:17am
Realist Liberal:
According to my Con Law professor, another reason for the 18th Amendment was the notion of federalism. At the time NO ONE thought that Congress could regulate fully intrastate activity, that was fully within the purview of the states. The people who pushed the amendment wanted to ban ALL alcohol and not all states were on board with that idea.
11.22.2006 10:29am
Jeremy T:
I don't think any reasonable, rationable people disagree that the terminally ill should be able to try pretty much anything to save their lives. But there is just no right to such treatment in the Constitution.
11.22.2006 12:01pm
Hans Bader (mail):
The D.C. Circuit's vacating of its decision in favor of the terminally ill makes no sense at all. Its original decision in favor of the patients and against the FDA was a faithful application of precedent.

How can anyone argue with a straight face that the right to life -- which is expressly guaranteed by the Constitution -- is entitled to less protection than the right to a partial-birth abortion -- which is not expressly guaranteed by the Constitution?

Yet that's the FDA's unstated premise, and accepting that premise is the only way a court can rule against the patients in the Abigail Alliance case: to hold that their right to life is less protected against regulation than the right to a late-term abortion.

In the partial-birth abortion context, the courts have held that it doesn't matter if many regulators think that partial birth abortion is unnecessary for a woman's emotional or physical health, or even if the American Medical Association thinks that. It only matters that there is a respectable minority of physicians who think that partial birth abortion might benefit a woman's emotional or physical health.

Yet in the FDA case, the Government is arguing that gravely-ill patients who will otherwise surely die can be deprived of drugs that have passed the first stage of FDA review, and that clearly enjoy the support of at least a respectable minority of physicians, simply because the drugs have not yet had the chance to pass subsequent stages of the FDA's lengthy and very slow approval process.

What the patients seek in the Abigail Alliance case is very modest. They just want the opportunity to seek drugs that they plausibly believe are safe and effective from willing, private providers. And they seek to do that in order to extend their very lives (and in the process, save themselves from debilitating physical pain and emotional suffering as well).
11.22.2006 12:05pm
Hans Bader (mail):
The right to life I speak of above is the patient's right to life.
11.22.2006 12:07pm
Hans Bader (mail):
I object to the argumentative title of this post, which suggests that the patients in the Abigail Alliance case are seeking a generalized right to take drugs, which they thankfully are not. They are making a much more modest claim, one consistent with precedent.

They only seek access to medications that private providers would, in the absence of onerous government regulation, voluntarily provide them with. Moreover, they seek to do so only in order to save their very lives. (The constitution does, after all, repeatedly mention the right not to have one's life taken through improper state action, and government regulations constitute state action subject to constitutional scrutiny).

Moreover, they only seek access to drugs that reputable physicians would be willing to recommend, and that by definition have a respectable argument for their use by virtue of the fact that they have passed Phase 1 of the FDA's lengthy and slow approval process.

As the panel decision pointed out, the patients' position is supported by the Supreme Court's decisions dealing with the terminally ill.

As I point out in the below blog post, there is an alternative line of cases that also supports the patients' position (although that line is not necessary to support their position; it is merely additional support): the Supreme Court's abortion decisions.

If a controversial medical procedure, like partial-birth abortion, can be protected from prohibition based simply to promote the patient's emotional or physical well-being, even though many doctors view it as unnecessary, then surely an experimental drug recommended by a reputable physician should be protected from prohibition when it is necessary to preserve the patient's very life. (The constitution does, after all, repeatedly mention a citizen's right to life in its text; by contrast, it does not explicitly mention a right to abortion).

I have a post on this subject of my own at the Open Market blog.

Open Market Blog
Court Ensures Painful Death for Terminally Ill
Hans Bader | 11/22/2006 @ 11:57 am

Yesterday, the D.C. Circuit Court of Appeals voted to vacate and rehear its Abigail Alliance v. Von Eschenbach decision, which would have required the FDA to justify why it prevents gravely ill people who would otherwise die from obtaining access to drugs that have passed the first stage of the FDA's lengthy approval process. Decisions are usually reversed when they are reheard by the full court.

Apparently, the specter of terminally ill people being able to access experimental drugs that might save their lives was just too scary for many of the D.C. Circuit judges.

Perhaps they agreed with the specious arguments of the Washington Post, which editorialized against the D.C. Circuit's original decision in favor of the terminally ill by using the straw-man argument that no one has an affirmative right of access to medical treatment.

But the patients have never sought a dime of taxpayers' money, much less affirmative assistance from the government. All they seek is the right to obtain treatment, at their own expense, from willing private medical providers.

But in a feat of Orwellian word play, the Washington Post redefined affirmative access as meaning not being blocked by government interference from obtaining treatment from a willing provider. Under the Post's perverse definition, seeking private medical treatment automatically qualifies as a demand for affirmative access from the government, if government red tape would otherwise prevent such treatment.

An unstated premise of the Post's editorial is that that a patient's right to live (a right expressly mentioned in the Constitution) should receive less judicial protection against regulation than the right to a partial-birth abortion (which is not mentioned in the Constitution, but which the Post has repeatedly advocated). That is a very bizarre premise.
11.22.2006 1:26pm
Jeremy T:
Hans,

When someone dies of a disease, the disease takes the person's life, not the government.

A governmental regulation prohibiting potentially life-saving drugs from going to terminally ill people, stupid though it is, does not "kill" anyone.
11.23.2006 12:20am
Ted Frank (www):
Jeremy,

When someone dies from their failure to obtain an abortion, the pregnancy takes the person's life, not the government. Thus, by your argument, the ban (or even the regulation) on a particular abortion procedure, whatever its merits, does not "kill" anyone. Nevertheless, the Supreme Court states that it is constitutionally protected, even when not necessarily life-saving.

Abigail Alliance is a natural consequence of Justice Breyer's decision in Stenberg v. Carhart: government cannot place a substantial obstacle in a patient's path when she is seeking medical attention to preserve her health. Perhaps the DC Circuit disagrees with the much-criticized Stenberg decision, but it's not within their power to disregard it.
11.23.2006 4:52am
markm (mail):
Hans: Just where is this "right to life" in the Constitution?
11.23.2006 5:28am