The Court Gives and the Court Takes Away


Last year, a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit ruled that patients have a constitutional right to purchase potentially lifesaving developmental medicines prior to FDA approval, a huge (and hugely controversial) win for patient autonomy. The D.C. Circuit later granted en banc rehearing, and that opinion(pdf) was released this morning. The court now asserts that the Due Process Clause has nothing much to say about the right of the terminally ill to defend themselves against the onslaught of disease; it is the FDA's prerogative to deem a medicine too dangerous to ingest, even if the patient in question is about to die. Judges Ginsberg and Rogers, who together formed the majority in the original opinion, dissented.

Part of the Abigail Alliance's case hinged on the fact that the prohibition on trade in unapproved pharmaceuticals is a relatively new development; the court disputes this, and adds:

True, a lack of government interference throughout history
might be some evidence that a right is deeply rooted. But
standing alone, it cannot be enough. If it were, it would be easy
to employ such a premise to support sweeping claims of
fundamental rights. For example, one might argue that, because
Congress did not significantly regulate marijuana until 1937,
relatively late in the constitutional day, see Gonzales v. Raich,
545 U.S. 1, 11 (2005), there must be a tradition of protecting
marijuana use. Because Congress did not regulate narcotics
until 1866 when it heavily taxed opium, a drug created long
before our Nation's founding, see United States v. Moore, 486
F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J.,
dissenting), it must be that individuals have a right to acquire
and use narcotics free from regulation…Indeed, creating
constitutional rights to be free from regulation based solely upon
a prior lack of regulation would undermine much of the modern
administrative state, which, like drug regulation, has increased
in scope as changing conditions have warranted.

The opinion cites Raich again elsewhere. The upshot: An opinion denying cancer patients access to a substance that would ease their pain (marijuana) is being used as precedent in an opinion that would deny cancer patients access to a substance that might… halt the spread of the cancer. 

My August/September feature on terminally ill patients, which includes reporting from the en banc rehearing, is here. Ron Bailey's take on the Abigail Alliance is here.