Abigail Alliance, Fundamental Rights, and the Declaration of Independence:
I haven't blogged about Abigail Alliance since the panel decision was handed down, but after David's post I thought I would add my two cents that the en banc decision was correct. As the lopsided 8-2 vote hints, this wasn't a close case: the doctrine of substantive due process just isn't as broad as the dissent wants it to be.
To be clear, I prefer the dissent's conclusion as a matter of policy. If it were up to me, I would let the terminally ill take whatever experimental potentially life-saving drugs they can get. The idea that the government would deny the terminally ill the means to try to save their own lives in this way is abhorrent to me. But last I checked, my personal views of sound public policy didn't inform the meaning of the founding charter of the United States Government.
In his post below, David suggests that the en banc D.C. Circuit was wrong because guaranteeing the "right to life" is specifically mentioned in the Declaration of Independence as a foundational purpose of government. If I understand David correctly, he would say that if the Declaration mentions a right specifically then measures related to it must be "deeply rooted in this Nation's history and tradition" and therefore "fundamental" under the Due Process clause. Describing the right more narrowly is merely "clever wordplay."
But this approach seems quite problematic to me. First, the Declaration of Independence does not only mention the right to life; it mentions the right to "life, liberty, and the pursuit of happiness." It would be odd if the Constitution triggered strict scrutiny of any law that regulates "liberty" or "the pursuit of happiness." It would make me quite happy to steal my neighbor's Porsche and drive around DC at 90 mph; the fact that the laws of private property and local traffic regulations block my pursuit of happiness in this way shouldn't mean that they are subject to strict scrutiny. But if the test is whether the Declaration mentions the right, then I'm not sure how we avoid such a result.
Second, while David dismisses the narrow description of the right as "clever wordplay," it seems to me that this "wordplay" is required by the same Supreme Court decision that requires the right to be "deeply rooted in this Nation's history and tradition" in the first place. Washington v. Glucksberg goes to significant lengths on the issue, emphasizing that "we have a tradition of carefully formulating the interest at stake in substantive due process cases" and requiring a "careful description" that is "precise." The D.C. Circuit was bound by that precedent, and as far as I can tell the en banc majority was faithful to its directions.
To be clear, I prefer the dissent's conclusion as a matter of policy. If it were up to me, I would let the terminally ill take whatever experimental potentially life-saving drugs they can get. The idea that the government would deny the terminally ill the means to try to save their own lives in this way is abhorrent to me. But last I checked, my personal views of sound public policy didn't inform the meaning of the founding charter of the United States Government.
In his post below, David suggests that the en banc D.C. Circuit was wrong because guaranteeing the "right to life" is specifically mentioned in the Declaration of Independence as a foundational purpose of government. If I understand David correctly, he would say that if the Declaration mentions a right specifically then measures related to it must be "deeply rooted in this Nation's history and tradition" and therefore "fundamental" under the Due Process clause. Describing the right more narrowly is merely "clever wordplay."
But this approach seems quite problematic to me. First, the Declaration of Independence does not only mention the right to life; it mentions the right to "life, liberty, and the pursuit of happiness." It would be odd if the Constitution triggered strict scrutiny of any law that regulates "liberty" or "the pursuit of happiness." It would make me quite happy to steal my neighbor's Porsche and drive around DC at 90 mph; the fact that the laws of private property and local traffic regulations block my pursuit of happiness in this way shouldn't mean that they are subject to strict scrutiny. But if the test is whether the Declaration mentions the right, then I'm not sure how we avoid such a result.
Second, while David dismisses the narrow description of the right as "clever wordplay," it seems to me that this "wordplay" is required by the same Supreme Court decision that requires the right to be "deeply rooted in this Nation's history and tradition" in the first place. Washington v. Glucksberg goes to significant lengths on the issue, emphasizing that "we have a tradition of carefully formulating the interest at stake in substantive due process cases" and requiring a "careful description" that is "precise." The D.C. Circuit was bound by that precedent, and as far as I can tell the en banc majority was faithful to its directions.
Related Posts (on one page):
- Abigail Alliance, Fundamental Rights, and the Declaration of Independence:
- Abigail Alliance and the Declaration of Independence:
Honestly, I am not sure how I come out on the Abigail Alliance Case. I seriously disagree, however, that if a public policy can be characterized as abhorrent by most reasonable people (I actually disagree that this policy is necessarily "abhorrent") that that has no bearing on the meaning of whether a particular deprivation of liberty is irrational and thus a deprivation of liberty without due process of law. Furthermore, and a minor point but one that often has consequences (though not here), the Constitution may indeed be the "founding charter of the US government" but the provisions often litigated were enacted long after the founding. (Here that is not the case as the 5th Amendment was enacted just after the enactment of the original constitution.
It would make me quite happy to steal my neighbor's Porsche and drive around DC at 90 mph; the fact that the laws of private property and local traffic regulations block my pursuit of happiness in this way shouldn't mean that they are subject to strict scrutiny. But if the test is whether the Declaration mentions the right, then I'm not sure how we avoid such a result.
Orin, you are far too smart to argue this straw man, especially the latter, bolded part. Again, I do very much disagree with David that the Declaration of Independence somehow binds us on what the Constitution means, but what you just said is absurd. The obvious (and to me common-sense) way around the "problem" you identify is that private property laws are necessary for the pursuit of happiness. Moreover, the Constitution specifically protects private property and thus the more specific portions of the Constitution would apply in your straw-man hypothetical and not the abstract "pursuit of happiness." You can do better in arguing why David is wrong than this silly hypothetical.
The question then to me is (A) whether the denial of potentially life-saving drugs is a deprivation of life. Then, assuming it is, (B) what process a person is due before being deprived of life by the Federal Government -- there is quite a bit of jurisprudence on the latter point, and I think it obvious that that the persons in Abigail Alliance were denied such process. Thus the big question is (A). And it is a harder question than the majority of the en banc panel thought it was. And I further don't think they addressed this case in the correct framework at all therefore (though this is probably the fault of the lawyers, etc.)
If there is a constitutional right which applies only to "dying people," then what is the constitutional definition of "dying"?
But for something even more rooted in American tradition, how about this. The constitution says that freedom of speech shall not be abridged. Period. It doesn't list any exceptions, except to say that the enumeration of that right does not deny or disparage any other rights. So tell me why exactly I can't yell fire in a crowded theater. I say the reason is that there is an unenumerated right to life that the other theater patrons enjoy that cannot be is not denied or disparaged by the enumeration of my first amendment rights.
Why, then, would the government be able to trespass against that same unenumerated right without doing all it could to avoid infringing on the right to life? And if it can, why would the founders, believing what they did, have wanted to create it?
The right wouldn't be different, it would be the ability of the government's actions to pass scrutiny in denying it. In general the government denying me access to any old untested medication I want passes scrutiny. Those medications could kill me, or kill other people who take it, such that preventing the sale of untested medications is the logical way to further the government's compelling interest in protecting human life. But if I am about to die anyway, the rational for me being denied drugs on the basis that they might kill me is pretty weak. The law doesn't seem to be particularly narrowly taylored if it doesn't recognize that fact.
Your line of argument — that the line is way too gray to try to carve out an exception for dying people — seems to me exactly how you would go about arguing that the current law is narrowly taylored.
But that wouldn't change the underlying right of medical self-defense, it would just mean that the government's abrogation of that right passed scrutiny. There are still examples where it would exist, and it would cause laws to fail scrutiny. Say that the government decided to ban penicillin, a drug that many need in order to save their lives, can be dangerous to some, but has a long history that shows the government need not ban it in order to serve a legitimate state purpose. Such a ban would not pass scrutiny in its violation of the right to medical self-defense.
As far as an actual dividing line, my suggestion would be your doctor's reasonable belief that she's not going to get sued for malpractice when you die from the untested treatment she gives you.
I have a friend with severe arthritis. After Merck removed Vioxx from the market, she was in severe pain for some time, until she and her doctor found a new pain reliever which would provide something close to the same level of pain relief. Why would she have a lesser right to a chemical compound which she needs to remain mobile and functional? With the dying, do they have a right to chemical compounds to relieve pain, or only a right to chemical compounds which they believe have a chance of curing them?
That is not my argument. Not exactly. My argument is that any state of health limits Congressional action to those excercises of authority which pass scrutiny*. The fact that someone is dying bears on whether the prohibition on experimental drugs serves the government's interest in saving life.
As for your arthritic friend, she no doubt has some right to maintain her health. Had her medication been removed from market directly by the government, the government would have to pass some similar (probably lesser) degree of scrutiny. It could do so by:
(1) asserting a legit purpose — to prevent the medication from killing people
(2) showing why its actions where the ones it had to take — nothing short of the removal would save all the lives that would otherwise be lost
and (3) showing that there shouldn't be special exceptions carved out — if there wasn't a good way to tell who would and wouldn't be except from the underlying logic of the prohibition.
I think such a measure surely passes scrutiny, whereas denying medicine to terminally ill patients on the basis that it may kill them seems like it is as least a closer call.
It is worth noting, however, that Vioxx was removed by Merck for liability reasons. It was forced to remove the medication for fear of juries — a random selection of We the People — not by the government established from the delegated powers of the people.
*=which level of scrutiny I believe applies is a question that I could not answer definitively without some research
The freedom to attempt to prolong one's life is at issue, I think, rather than the particular means by which the attempt might be made.
In this case, it appears that the means is a medication deemed to be unproven to save human lives.
I guess, the question becomes, where to draw the line on informed consent to the attempt to prolong one's life -- and within that line would be the zig-zags around the various means to which one might consent.
Surley, even a protypical exmperimental treatment, if represented as such and with a reasonable estimation of the risks involved, could be consented to by a person sufficiently informed.
The justification for drawing the line against such an attempt to prolong one's life might be based on fencing off the temptation to create false hope for success.
I mean, if you are facing death you might put unrealistic hope above all caution. Still, seems it would be informed unrealistic hope.
But fencing off is about protecting the common good even at the cost of some liberty for some individuals.
Justification of that sort would mean testing the measure of success -- for example, full or partial recovery, a few more days or years, or some other crtieria in addition to prolonging life. Seems like constantly moving the goalposts and not something the judiciary ought to be administrating.
Interesting subject.
I think you have your facts wrong in suggesting that the drugs that the Abigail Foundation wants to use will have an impact against cancer.
Agents that have passed Phase 1 trials have demonstrated neither efficacy not, except in a very basic way, safety. Agents selected for Phase 1 testing have shown promise in animals. They then are given to humans in escalating doses, with 3-5 patients getting each dose level. When unacceptable toxicity is found, the next lower dose level is selected for use in Phase 2 efficacy trials. Fewer than 50 patients are enrolled in a Phase 1 trial.
As for efficacy in Phase 2 trials, Phase 2 patients have advanced disease, and efficacy is established by obtraining a temporary response in fewer than 25% of patients. Prolonged remissions are rare, and cure is all but nonexistent in these trials. Most agents in Phase 2 trials never make it to market because they are ineffective or too toxic. Eventually, effective and safe agents go into phase 3 trials, where they are integrated into therapy with curative intent in patients with earlier disease in whom cure is possible.
Objectively, then, the agents the Abigail people seek to use are unlikely to prolong the lives of terminal cancer patients.
What is the big deal, then, about letting a terminally ill cancer patient get such an agent to provide him or her with the solace of beliving that no stone has been left unturned?
The systematic testing of these agents is the only way to ensure the development of new drugs with proven efficacy. Diversion of patients from formal clinical trials prevents this.
If one talks about a right to life, one must balance the right of the terminal cancer patient to receive an agent that has cleared Phase 1 testing with the rights of the huge, but inchoate, class of patients who will get cancer in the future, and who will die without better drugs.
The Abigail people would have a better argument if they wanted to use drugs that had passed Phase 2 testing. These at least are actually drugs-- that is to say, they exert a therapeutic effect.
Even here, though, the harm that their proposed would impose on the larger community is so great that society, and the courts, should reject their plea. There arguably is an important, if not compelling, government interest in developing effective cancer treatment. The FDA drug approval program seems narrowly tailored to acheive this. If the government interest is compelling, then the program survives strict scrutiny. If the interest is less than compelling, the right of the Abigail people to protect their life must be weighed against the right of others who will contract cancer to protect their life. This balance must take into account the calculus of preservation of life under the present legal regimen and under that which Abigail proposes.
The bottom line is simple - Whose life is it anyway? The individual's or the State's? I argue 100% individual, and as long as that individual is not engaged in fraud, or using force to achieve his goals, then the government has no right to impose upon them
I don't see the FDA mentioned in Article 1. Nor, for that matter, 90%+ of the Federal government
Call me naive. Call me unrealistic and foolish. However, I submit that as long as the legal profession accepts unenumerated aspects of the Federal government and ignore the language of the 9th and 10th amendments, we will continue to have situations where the Feds contribute to the death of otherwise peaceful citizens.
When we think of Lochner, we hate it. But now when government regulation proves its dark side, we should rethink our rejection to Lochner and its ramifications. Probably Janice Rogers Brown is right.
What is the relationship between the integrity of the FDA and the meaning of the Due Process clause? Are you suggesting a "living, breathing" Constitution in which the meaning of the Due Process clause is linked to the integrity of the FDA at any particular time, such that changes in the latter trigger chances in the former? If so, what authority would you cite for that view?
+++++++++++++
Liberty is Risky
Liberty is Risky
By Charles H. Sawders
In a free society potential behavior cannot be punished. To the extent that it is, is the measure of the absence of liberty.
Unacceptable behavior proscribed by law, may be punished. But in a free society what one might, maybe, could, possibly, perhaps, be able to do is not grounds for punishment or truncation of rights. Only after the unacceptable behavior has occurred can a free society protect itself by punishing the actor, both as retribution and deterrence. Any punishment or restriction prior is a veto of liberty.
Liberty is risky. We must rely on the good natures of our fellow citizens to a large extent. Though risky, it has proven throughout history to be much safer than entrusting ourselves to the good natures of governments.
Those unwilling to risk liberty can always find a master. If that be their desire, I will not strive to prevent such, so long as they seek subservience and servitude on a personal level. They are not empowered to seek either, nor a master, for me. When they venture to do so they have become my enemy. An enemy who will not be tolerated. An enemy who will be counted among the forces of evil by free men everywhere.
You seem to be misunderstanding what this case is about. Courts are not free to do whatever they think is good for America; they have to follow the law. Specifically, lower courts must follow the United States Supreme Court.
Given that, there are three possibilities:
1) You disagree with the case because you think the D.C Circuit did not follow United States Supreme Court precedents properly.
2) You disagree with the case because you think the D.C Circuit actually did follow United States Supreme Court precedents, but you think lower courts should not follow the legal rules requiring them to be bound by U.S. Supreme court law.
3) You think that the D.C. Circuit was correct.
I'm curious -- which is it?
Judges act all the time and do what they think is good for America -regardless of precedent. They rationalize their decision and quote law and decisions, however illogical, irrational or immoral.
SCOTUS took upon themselves overall power as I understand it starting with Marbury v Madison. Why should we accept whatever 9 unelected, and for the most part unimpeachable individuals say about how life should be conducted in these United States?
My argument is simple - there is no enumerated power that creates the FDA, thus any ruling that infringes on the individual choice of what to ingest is, on its face illegal and immoral.
I am not afflicted with legal training, however when legal and moral conflict, I find the acceptance of legal unpalatable.
I ask again - whose life is it anyway, and why should stare decisis get in the way of what's moral?
If it took a Constitutional Amendment to prohibit alcohol, why doesn't it also take an Amendment to prohibit use of various drugs?
I didn't say that the Commerce Clause would have allowed Prohibition without a constitutional amendment; to the contrary, I said it "took an Amendment to take away the rights of states and the federal legislature to permit alcohol".
As an aside, it seems worth noting that your view that "the Commerce Clause hasn't changed" is a minority view, based on an apparent premise that "the Commerce Clause" has an existence unrelated to what the courts say the Commerce Clause is. It seems to me that the more common view is that "the Commerce Clause" means the rules that courts enforce under that clause; under that more common view, the Commerce Clause has indeed changed over time.
As Professor Kerr knows, we don't live in a democracy. We live in a Constitutional Republic which is based upon Judeo-Christian morality. And, the ultimate morality of individual liberty is to not engage in force or fraud to achieve one's goals, and to respect the rights of others to do the same. Thus the INSANE War on some Drugs is totally immoral if we truly believe in liberty and the primacy of the individual. Unfortunately, this country doesn't believe it. Our laws don't reflect it, and our politicians abhor the idea, and a whole lot of people are scared to death of it.
Actually, we do live in a democracy. The majority of people approve of our system of criminalizing and prosecuting drug distribution. As happens in a democracy, their views win and your views lose.
Now, I understand that you might *want* to live in a world governed by your concept of "the ultimate morality of individual liberty", in which judges prohibit unwise majorities from supporting rules inconsistent with "ultimate morality." But that's not the world we live in, at least as far as I can tell.
On the other point, yes, I think the Constitution has meaning completely independent of what the USSC says, and, to the extent there is no case that requires otherwise, any officeholder sworn to uphold the constitution has an obligation to enforce the proper meaning of the Constitution. So, for example, just because the USSC has said that Congress may regulate medical marijuana in the states does not relieve the executive branch of its independent obligation to refuse to enforce any such rules.
Am I reading this correctly? We live in a "democracy"? Since when, and where is that democracy codified in the US Constitution?
We live in a democracy in that the people - the deimos - are free to constitute their own government(s), but the one that they have constituted does not give the people the power to rule. It gives the power to rule to the representatives of the people, and at that it gives only limited power to rule to those representative, reserving many rights to the people, and some inalienable ones to individual citizens.
Sure, you can call that democracy, and most people do. But if that is what you mean, where is your point of disagreement with Horatio? We live in a Constitutional Republic in which the government's powers are limited by the import of several very important constitutional clauses that do indeed refer to concepts within an intellectual tradition influenced by the faith of our constitutional framers and amenders.
Assuming you are not God, you might recognize that your definition of what is "moral" might not be right.
I am curious, Professor Kerr, are you expressing a view that no clause of the Constitution have a fixed meaning (or that most don't)? Or are you saying that the Commerce Clause in particular is a clause whose original fixed meaning was a reference to a (as-of-yet-non-existant) judicial doctrine?
The first would seem to be a rejection of Originalism (if so, why not just say so?), whereas the second would seem to require some evidence as to the framers' intent.
This seems a false comparison to me. The ruling, if applied to your Porche comparison, says that you don't have the right to buy a Porche because the government has said that you can't because 1) a Porche is capable of traveling twice the speed of the legal speed-limit which seems a deliberate challenge to the government's ability to set speed limits; 2) it uses too much gas which violates the government's right to regulate emissions and gas mileage; and 3) there are other, slower alternatives which look nice and fit within the law.
The ruling also seems to be saying you don't have a right to break the speed-limit, even when getting to the hospital quickly might save someone's life, because exceptions harm the government's power to set laws. You should instead wait for a legally authorized ambulance. If the person dies while you're waiting, well, at least you still have rule of law.
Professor Kerr, I didn't mean that I would use the integrity of FDA as a constitutional issue. The reference to the corruption of it is just shed of personal emotion of me. But probably its lack of integrity can contribute to its "arbitrariness", which is sort of vague in precedents.
As a constitutional matter, the right to experimental drugs can be traced to the emanation of Lochner, Pierce v. Society of Sisters, and Meyer v. Nebraska. Lochner is no longer valid to modern constitutional jurisprudence, but the latter two are not invalidated and may be still cited. commerce clause may be another issue, but that probably wouldn't fly after Raich decision, which I still considered to be wrongly decided.
1. To grant the federal government the powers that would be absolutely required as the republic's situation changed repeatedly over the years, without granting it far too much power, and
2. How to enforce Constitutional limitations. Any agency formed to enforce the Constitution, including the Supreme Court, is itself a highly corruptible government agency. The best they could think of was to set up three branches of government and hope they would restrain each other. It hasn't totally failed, but it hasn't worked well, either. Two branches refer to the Constitution only to level accusations at their political opponents, ignoring it whenever they sense a temporary political majority in favor of violating some provision, and the third branch only intermittently issues a correction, while often ignoring their duty to enforce the laws as they are (starting with the Constitution) in favor of somehow rationalizing whatever it is that five Justices want.
I haven't any better ideas. If the majority of the voters don't care to protect their rights (or at a minimum, as the shock at the Kelo decision and the many ineffective "reforms" enacted since show, most don't spend the time and effort to learn what is actually happening to their rights), then in the long run they will lose them.
If the government has to supply a decent justification under strict scrutiny in order to interfere with whether you send your kids to private school, teach them German, use contraceptives, or live under the same roof with your grandmother, then why doesn't it have to supply a decent justification when it forbids you from taking a drug that your oncologist thinks is your best chance at survival?
My definition of morality is simple - I own my life, and I have the right to do with it as I please as long as I don't use force or fraud to achieve my goals, and respect the rights of other individuals to do the same.
You sound as though you think the State owns me and can tell me what to do as long as 50%+1 say it's OK. Where does that morality come from?