In a recent WSJ op-ed, New Right to Life, Cato’s Roger Pilon criticizes the recent decision of the Court of Appeals forthe D.C. Circuit, which “reversed a 15-month-old decision by a panel of the court that had recognized a constitutional right of terminally ill patients to access potentially life-saving drugs not yet finally approved by the Food and Drug Administration.” The case is Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach; the opinion is here, and other material about the case is here.
The dissent, said Pilon,
[c]iting the Fifth Amendment’s right to life, the Ninth Amendment’s assurance to the Constitution’s ratifiers that the rights retained by the people far exceed those named in the document, and the Supreme Court’s “fundamental rights” jurisprudence, [...] argued that the right to life, the right to self-preservation, and the right against interference with those rights ”which the FDA is guilty of” are of one piece. They are deeply rooted in common law and the nation’s history and traditions, implicit in the concept of ordered liberty, and thus “fundamental.”
Indeed, it is startling, she [the dissenting judge] noted, 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 the rights at issue here are “fundamental,” she concluded, the court must apply, in judicial parlance, “strict scrutiny.” The burden is on the FDA to show why its interference is justified to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.
The heroic dissenting judges (Judge Judith Ann Wilson Rogers and Chief Judge Douglas H. Ginsburg), by the way, were appointed by Clinton and Reagan, respectively. The author of the majority opinion, Judge Griffith, was appointed by George W. Bush. In fact, all five of Bush’s appointments to the D.C. Circuit voted with the majority.
Interesting side-note: In the comments to the Reason “Hit & Run” post about Pilon’s article, one comment says:
Curious as to the Reason view that it’s wrong for the FDA to not allow “untested” (by their standards) to flow to patients but its ok for Congress to ban the flow of drugs that are imported from nations with price controls...Could it be that in the former scenario Pharma makes more $ but under the latter they do not? Is that a libertarian principle I’m unaware of?
I believe the author is referring to the controversy a couple years back when some Cato scholars opposed the reimportation of drugs on patent-related ground—see my post Intellectual Property and Think Tank Corruption, which includes discussion of and links to Cato Tugs Stray Back Onto Reservation; Jude Blanchette’s The Reimportation Controversy; Protectionist Cato?; Drug Patents and Welfare (see also Epstein and Patents and Richard Epstein on “The Structural Unity of Real and Intellectual Property”); and Cato-Bandow and the Temptations of Power.
