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Debating Abigail Alliance:

As part of the Federalist Society's "Originally Speaking" on-line debate series, I participated in a debate on the U.S. Court of Appeals for the D.C. Circuit's decision in Abigail Alliance v. Eschenbach. A divided three judge panel initially held that terminally ill patients have a fundamental right under the Due Process Clause to access potentially life-saving medicines that are only part-way through the FDA approval process. Sitting en banc, the D.C. Circuit reversed the panel's decision 8-2.

Although I am highly sympathetic to the Abigail Alliance's policy arguments, I do not accept their legal arguments. Joining me in the debate was Ed Whelan of the Ethics and Public Policy Center. Taking the other side were Roger Pilon of the Cato Institute and Curt Levey of the Committee for Justice. The full debate is available here.

For prior VC posts on Abigail Alliance, see here.

Eli Rabett (www):
In this case I would think the policy issues override the legal ones.
10.30.2007 11:34am
Hans Bader (mail):
It's odd how state-worshipping "conservatives" are willing to use methods of constitutional interpretation to defeat Abigail Alliance's right to life itself, when those very methods are directly at odds with the methods of constitutional interpretation that conservative justices use to shield sovereign immunity.

Is the "right" of a state government to sovereign immunity, above and beyond that conferred by the Constitution's text, more fundamental than the right to life referenced in the Due Process Clause of the Fifth Amendment?

In the debate, Roger Pilon made the argument that the Constitution doesn't just recognize the small number of rights it expressly creates, but rather also recognizes pre-existing rights, whose existence is referenced in the text.

An apparent example would be the Fifth Amendment due process clause's right not to be deprived of life without due process, which itself only expressly creates a procedural protection, but does so to safeguard an underlying, substantive right to life.

The Abigail Alliance case undermined that fundamental right by upholding arbitrary government action that costs terminally ill people their lives by preventing them from freely contracting with drug-makers to purchase experimental drugs.

An analogy to Roger's argument can be found in the Supreme Court's Eleventh Amendment jurisprudence. Although the text of the Amendment only expressly creates an immunity against suit for a state against a suit by a citizen of a different state, the Supreme Court (and all of its conservative justices) has read it as recognizing a broader, preexisting underlying concept of sovereign immunity that predated the constitution, and which bars not only suits against states by other states' citizens, but also suits against states by their own citizens, and other types of suits against states. (See, e.g., Seminole Tribe v. Florida).

Why is it acceptable to read protections for sovereign immunity more broadly than expressly commanded by the Constitution, but not protections for the fundamental right to life itself?

Does lawless state action deserve more protection (from suit through sovereign immunity) than the life of the very citizens for whose benefit the institutions of government were created?
10.30.2007 12:16pm
Eli Rabett (www):
The assumption that the drugs would be life saving is a stretch. Some might be, some not.
10.31.2007 1:03am