The Right to Try

Our government continues to try to protect us to death.

On August 7, 2007, the D.C. Circuit, in Abigail Alliance v. Eschenbach, reversed a 15-month-old decision which had recognized the Constitutional right of terminally ill patients to have access to potentially life-saving drugs that are still in the process of approval by the FDA.

The dissent to that opinion, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, argues that, under the 5th Amendment, the 9th Amendment, and current "fundamental rights" jurisprudence, the right to life, the right to self-preservation, and the right against interference with those rights are deeply rooted in common law and the nation's history and traditions, implicit in the concept of ordered liberty, and thus "fundamental."

Rogers' dissent points out that the rights "to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one's own body have all been deemed fundamental, but the right to try to save one's life is left out in the cold despite its textual anchor in the right to life." Because those rights are fundamental, strict scrutiny applies, and therefore the burden should be on the FDA to show why its interference is justified by compelling interests and its means narrowly tailored to serve those interests.

Unfortunately, the majority opinion did not share this view.

What's the downside to allowing a terminally-ill patient to use experimental, non-approved drugs to try to save his or her life? According to proponents of the court's decision, such drugs could make patients sicker and therefore make their remaining life worse. Maybe that could happen, yes. But maybe it won't. And maybe those who suffer a little more before they die will regard the chance of getting better as being worth the extra pain. But shouldn't they be able to make that decision for themselves? The same way women are allowed to abort, even if it may cause health problems in the future.

Some have argued that allowing people to take unapproved drugs will make effective clinical testing impossible, since, it would be impossible to get them to submit to the double-blind, randomized tests (including the use of placebos), when they could make sure they were getting the drug (and not a placebo) by actually paying for it. To that, I say, so what? Maybe it's time for the structure of the clinical trial to change. The goal of our medical regulatory establishment should be to save as many lives as possible. Why should people be forced to be guinea pigs in the first place? Maybe this is a naive view of how drug approval works, but my guess is if they eliminated use of placebos, they would still be able to find out if a drug works or not.

Legally speaking, it is hard to imagine that the mechanism of "substantive due process," a device that has allowed the court to extend the Bill of Rights to the States' laws via the 14th Amendment, can create a bunch of reproductive rights out of nowhere* but not rights that allow people to do something that is explicitly named in the Preamble to the Constitution-- "The right to life, liberty and the pursuit of happiness."

Historically speaking (assuming that such an analysis should be done to locate a fundamental right), the dissent points out that for most of our history individuals were free to take whatever drugs they wanted without a doctor's prescription, until 1951, when Congress created a category of prescription drugs. Then in 1962 it began requiring drug companies to conduct extensive tests to ensure drug "efficacy," which led to the system we have today.

Perhaps what this is really all about is that the justices don't want to create a "slippery slope" whereby litigants can argue putting any substance in their body is a constitutional right (read: illicit drugs). While I personally wouldn't mind that slope getting slippery, I don't see it as a logical conclusion from the dissent, since illicit drugs don't have the capacity to save lives -- maybe make them more palatable, but not save them.

This one definitely needs to be looked at again. With any luck, Abigail will be granted certiorari by the Supreme Court, and we'll finally see what the Roberts Court is made of.

* By nowhere, I mean "penumbras," or shadows, emanating from the other Amendments, especially the 9th, which reserves rights not enumerated in the Constitution to the people.