Ebola

Do U.S. Ebola Patients Have a Constitutional Right to Try Experimental Drugs?

|

Credit: CDC

Assume the following dire scenario: You become infected with Ebola and are quarantined by U.S. medical officials. A promising new experimental drug is in the works, but it hasn't yet received final approval. You want to try the drug but the authorities won't let you. Do you have a constitutional right to try to preserve your life by taking the experimental drug? Most Americans would probably say yes. But according to a prominent federal court, the answer is no.

In 2007 the U.S. Court of Appeals for the District of Columbia Circuit ruled against a group of terminally ill cancer patients who were suing the FDA in order to gain access to experimental drugs that had the potential to save their lives. According to the D.C. Circuit's ruling in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, however, nothing in the Constitution protects "a fundamental right of access for the terminally ill to experimental drugs."

Writing in dissent, Judge Judith Ann Rogers, joined by Chief Judge Douglas Ginsburg, attacked the majority's "startling" decision and its "stunning misunderstanding of the stakes" involved for the terminally ill. "To deny the constitutional importance of the right to life and to attempt to preserve life is to move from judicial modesty to judicial abdication, as well as confusion," Rogers and Ginsburg declared.

Despite the strength of that dissent and the many failings of the majority opinion, however, the Supreme Court refused to take the case on appeal. The D.C. Circuit's ruling remains on the books.

For Reason's ongoing coverage of the Ebola outbreak, see here.

Advertisement

NEXT: A.M. Links: Ebola Screenings at U.S. Airports, White House Linked to Secret Service Prostitution Scandal, Black Teen Fatally Shot by Police in St. Louis

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’m sorry, which clause in the Constitution grants the government the power to decide what I put into my body?

    1. Commerce clause, probably.

      1. Yep, cause EVERYTHING effects interstate commerce!

        After all, keeping you alive when you were going to be dead makes it possible for you to buy stuff across state lines, or by stuff in your state that gives money to another who buys across state lines!

        Yep, the Commerce clause covers EVERYTHING!

        There is no escape from the all powerful Unitary National Government.

        1. Yep. The Founders took all that time to write/ratify the Constitution so as to limit the powers of government, only to include a clause that makes the government omnipotent.

          /Nazgul (1942)

        2. Doesn’t really matter, because the state pharmacy laws have the same provisions on new drugs.

      2. In this case it really is that clause, but the issue in this case is not your right to decide what you put into your body. The FFDCA and similar state laws don’t make it illegal to take unlicensed drugs; those statutes don’t work like the controlled substances laws in that respect. What they say is that you’re within your rights to take the drug, but the person selling it to you is not within their rights to sell it. And even if they’re not selling it, if they’re operating under an investigative license, they must abide by the terms of that license, which restricts whom they can give it to. And if someone else makes it just to give to you, or if you make it yourself, you may be violating a patent that its inventor was issued on it for its composition or method of use.

    2. What are you talking about? Enumerated powers and unenumerted rights? That’s so quaint.

      You see, government has unenumerated powers, and our rights are limited to what’s spelled out in the Amendments.

      1. …and the positive rights cock suckers really believe this shit.

      2. Answer to the headline question: No. Because an Ebola outbreak in the USA is an oxymoron, and no, you still may not panic.

    3. Yeah, this exactly.

      “Nothing in the constitution protects your right to these drugs.”

      NO, you fuckwitted fuckwits! Nothing in the constitution grants the state the power to determine whether or not I can take it! Therefore, that power is reserved to ME.

      I hope every one of these fucks ruling on these cases – and the DA’s involved in jailing doctors “overprescribing” pain meds – gets a fucking horrible disease, and dies slowly, in agony, with their access to pain killers and medicine denied by the state.

      Fuck.

      1. When I rise to power, your wish will be granted. The lot of them will be mercilessly placed in the boats to spend the rest of their lives in agony, with the insects of the everglades feasting on their living yet putrefying flesh.

        1. Please tell me some of them get to heaven on eagle’s wings, if ya know what I’m sayin…

          http://en.wikipedia.org/wiki/Blood_eagle

          1. Too quick, too merciful.

        2. Mmmmm, scaphing.

      2. I usually express that wish as “stomach cancer”. My grandmother had that. It’s a bad one.

        1. x2. My father died of that.

          I should say, my father died slowly, in agonizing pain over the course of 6 months of that.

          1. Yeah. I try not to think about it too much. Really not good for my blood pressure.

    4. The Constitution is a living document so you must be forced to live to understand its liveliness

      Derp da derp derp

    5. You have formulated the question incorrectly.

      The correct question is:

      Which clause of the Constitution gives you the right to decide what you put in your body?

      The USSC has upheld the legitimacy of the FDA, and it determines what the Constitution says.

      1. So, “fuck you, that’s why.”

        I know…

      2. Have you checked your state constitution? The interstate-intrastate distinction is inconsequential, because the states have the same laws as the fedgov re drugs, medical devices, etc. In general, state pharmacy laws forbid the sale of a new drug unless either the state pharmacy board specifically allows it or the FDA licenses its sale in interstate commerce.

        The question is, where did the state “police power” over “health, safety, & morals” come from?

    6. Why, the national police power of course, which auhorizes legislating for the “health, safety, welfare and morals” of constituents.

      Oh wait . . .

      1. Yeah, I really would like it if all those (mostly GOP, as I recall) politicians who get all lathered up about making sure Sharia never takes root in America were capable of seeing parallels. I don’t really care if the name gets translated into English, I don’t want mutaween here in America by any term.

        1. muta-what?

          1. Saudi religious police, charged with upholding the morals of the community and punishing infractions thereof.

            http://lmgtfy.com/?q=mutaween

    7. The FYTW Clause, of course.

      It’s right at the end.

      “And if anything the government wishes to do seems to be prohibited by this document, we actually have the authority to do it anyway, because Fuck You, That’s Why.”

    8. I’m sorry, which clause in the Constitution grants the government the power to decide what I put into my body?
      Exactly, the issue is not whether ” the Constitution protects “a fundamental right of access for the terminally ill to experimental drugs” but rather that the constitution does not provide the government with the power to deny them.

  2. Do U.S. Ebola Patients Have a Constitutional Right to Try Experimental Drugs?

    No, that is only for Liberians fresh off the plane.

    1. Yet, so far, the only people on the planet to have tried the actual experimental drugs were the missionaries who chose to go to an disease infested African country and were subsequently flown back, quarantined, and treated, probably at our expense.

      That Liberian dude just got whatever the doctors pulled out of the cabinet after a shrug and a “maybe this will work”.

      Thomas Eric Duncan, the first person diagnosed in the United States with Ebola, remains in critical condition, but is now receiving an experimental drug, hospital officials say.

      The drug is brincidofovir, a broad-spectrum antiviral that has shown promise against Ebola in test tubes and is now being tested in animals, … Thomas Geisbert, who helped develop TKM-Ebola, said he is surprised that doctors would choose brincidofovir. To his knowledge, there is no evidence that brincidofovir works against Ebola in animals, said Geisbert, a professor at the University of Texas Medical Branch in Galveston.

      “I’ve never heard of this drug being used for Ebola before,” Geisbert said. “It works in cell culture. That’s great. Lots of things work in cell culture against Ebola,” he said, but then fail to help animals.

      I wouldn’t be surprised if “THEY TOOK OUR MEDS” becomes the next meme to bubble up out of the fever-swamp that is the WND-sphere, but, then again, few things surprise anymore.

      1. I wouldn’t be surprised if “THEY TOOK OUR MEDS” becomes the next meme to bubble up out of the fever-swamp that is the WND-sphere, but, then again, few things surprise anymore.

        The shtick here isn’t the Liberian stealing my meds. Its that he can take the meds at all, or even have them offered to him. Ditto for the missionaries. We’re talking about rights and rules.

        What unwritten rule in FDA/DHS/ABCDEFG regulations mean-tests someone’s eligibility to try unapproved drugs for incurable diseases (on the public dime or not)?

        Apparently, being a Liberian fresh off the plane with a particularly media-savvy incurable disease somehow passes that unwritten rule. Ditto for the missionaries. If all these clowns had cancer, they would not pass the unwritten rule, and would die like all the rest without even having had the chance to try something new.

        AIDS would be an interesting test of said unwritten rule with the same cast of characters.

        Do you see my point?

        1. Oh, I agree with you concerning the bureaucracy concerning experimental drugs. My point was tangential. Still I can’t get worked up at media sensationalization when it was successful for this kid. Indeed, the media needs to be used as a weapon to shame the government into allowing those with the willingness and resources to try experimental treatments with fear of consequence for the manufacturer. As the story I linked above, the sticking point isn’t that the government is afraid that the patient will die, but that the drug company is required to list any adverse reactions that occur during this phase…even they can’t be linked the treatment and probably resulted from the process of, you know, dying.

    2. “Do U.S. Ebola Patients Have a Constitutional Right to Try Experimental Drugs?”

      Only if it kills a fetus somewhere.

  3. Sadly, freedom can’t be secured through a document. Those that wish control use naked force, and only naked force can repel them.

    1. ++

      It also helps if the people for whom the liberty is being secured actually want it.

  4. In a nation where we’ll shoot someone to death to keep them from committing suicide, or charge them with a felony and throw them in prison to prevent them from harming themselves with illegal drugs, this make perfect sense.

  5. Come on, you’re not really buying into that “My body, my choice” bullshit?

  6. Your body the FDAs choice.

  7. Do U.S. Ebola Patients Have a Constitutional Right to Try Experimental Drugs?

    Sure, why would they be any different than everyone else.

  8. This is what happens when a society allows a relatively tiny collection of “experts” – chosen by an out-of-control federal government with its own agenda of self-preservation and self-aggrandizement – to control the choices, security and destinies of 330M+ individuals in a nation that is as culturally, academically, economically, racially, ethnically, spiritually and geographically diverse as ours.

    1. We’re Europe. Get over it.

      1. What’s the we stuff, Kemosabe?

        “We” can never hope to be as great as Europe.

  9. The cost of civilization never seems to get paid.

  10. isn’t cancer a clump of cells? it’s right there in the penumbra stupid judge.

  11. Yes, next question

  12. Do you have a constitutional right to try to preserve your life by taking the experimental drug? Most Americans would probably say yes.

    I guess I’m not “most Americans”. Especially given that we’re talking about someone who wasn’t even an American, and intentionally lied in order to get into my country. Sorry, but I’m not sympathetic to Thomas Eric Duncan. At all.

    I could perhaps be swayed into changing my mind provided that a) the person actually pays for taking the drug, and b) completely waives his right to sue anyone if he takes the experimental drug and his dick ends up falling off or something.

    1. Especially given that we’re talking about someone who wasn’t even an American, and intentionally lied in order to get into my country. Sorry, but I’m not sympathetic to Thomas Eric Duncan.

      I must have missed that part of the post.

    2. Take that statist cock, take it deep.

  13. If the patient can afford the drug or if the drug company offers the drug, of course government should not be able to obstruct that transaction. But I don’t want dying patients to be able to demand anything of drug companies, because the next step is that Americans have a “right” to drugs, which plays into the whole “health care is a right” nonsense.

    So as long as the transactions are voluntary and made in mutual self-interest, the government ought to just fuck off.

    1. I find it morally reprehensible if the drug companies don’t provide the drugs. So I would look to the reasons why a company would engender such negative goodwill. As mentioned above, regulations requiring reporting of side effects dis-incentivise experimental drug use outside of trials. Change the regulations, and there would be no need to force companies to offer the drugs, as it would be in their best interest to show they are trying to save people, not hoard treatments.

  14. “Chief Judge Douglas Ginsburg”

    Wow, someone should try to put him on the Supreme Court! He would have been better than that Anthony Kennedy clown.

    (whisper whisper)

    He did?

    1. ^ This

  15. the Supreme Court refused to take the case on appeal

    Chickenshits!

    That would mean discussing the amendment that shall not be named.

    *Peeking through their fingers*

  16. According to the D.C. Circuit’s ruling in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, however, nothing in the Constitution protects “a fundamental right of access for the terminally ill to experimental drugs.”

    Apparently they don’t teach the 9th Amendment in law school any more:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

    1. Read the ruling, see who the parties are, and you’ll see the issue wasn’t quite what you think it is or is “summarized” as.

  17. What I want to know is if Disney was filed suit against Ebola for infringement.

  18. Do U.S. Ebola Patients Have a Constitutional Right to Try Experimental Drugs?

    No. See “FDA”.

    Listen, every time anyone asks the question, “Isn’t it my body?” The answer is always the same:

    Socialist: “You know, that question really comes down to whether or not you think there’s a place for the FDA. I think there certainly is.”

    In other words, “No, we’ll tell you what you can do with your body. For you own good. But, we won’t just come out and say that. We’ll just make vague references to the FDA.”

  19. Any and all non-violent, non-coerced, non-larcenous, consensual adult behavior is your inalienable right… except for one problem. Our government does not recognize inalienable rights, nor does it support the principle of inalienable rights. We don’t have rights. That’s a myth which the so-called war on drugs exposed decades ago. We have privileges granted to us by the government. Yes, in America we are free–free to do whatever the government allows us to do.

  20. There was a debate on Fox News last night about how Duncan was “denied” the same quality of medical care as two other “white” patients, which of course is racist. Trouble is, the vaccine was bought and paid for by a private citizen. In Duncans case, nobody stepped forward to pay, even had it been available. Seems these blowhards don’t get the point that medical insurance policies don’t cover “experimental” drugs. Some don’t even cover drugs for which there are no substitutes. The fact that Duncan did not have a “sugar-person” to foot his bills is not per se “racist”, just unfortunate.

Please to post comments

Comments are closed.