Does it make any sense to respect the liberty of citizens to strap waxed boards to their feet and slide down snowy slopes with trees whizzing by for the thrill of it (I am not making this up), yet deny the dying access to potentially life saving drugs that have been proven safe?
That’s from Randy Barnett’s excellent discussion today of federal courts’ disappointing tendency to uphold the government’s right to deny pharmaceutical technology to Americans. Even when said technology has passed FDA Phase I trials. Even when said Americans are terminally ill.
Federal government has certainly overstepped its bounds by using its authority over Interstate Commerce to infringe on our fundamental rights to life and the pursuit of happiness, in this case through the informed consumption of pharmeceuticals.
In Abigail Alliance v. von Eschenbach, a three judge panel of the D.C. Circuit Court of Appeals ruled that, when a drug passed Phase I trials establishing its safety, a terminally ill patient has a right to try the drug before its efficacy is established, provided the patient has no other FDA-approved drug available for treatment. However, two weeks ago the circuit granted the government’s motion for an en banc rehearing before all the members of the court.
At stake is the right to life. Although the parties are pleading the Due Process Clause of the Fifth Amendment, their claim also finds textual support in the original meaning of the judicially neglected Ninth Amendment, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment’s author, James Madison, explained to the first Congress that it was added to guard against the implication “that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”
Barnett later contrasts the stiff regulation of pharmaceuticals with the government’s liberal zeal in guarding the “right” to perform partial-birth abortions, simply because there is always to be found an expert who claims this widely-offensive procedure might be necessary to save the life of a woman. Apparently the right to life is less expendable when there are political points to score.
Federalist 
Wonderful proposal over at Overcoming Bias:
Christopher Shea summarizes arguments of Eugene Volokh and the Abigail Alliance, among others, in favor of “a right to medical self-defense.”
CATO highlights another misguided government intrusion on citizens’ right to pain relief in their policy analysis “Treating Doctors as Drug Dealers: The DEA’s War on Prescription Painkillers“.
Amicus brief in Abigail Alliance v. Eschenbach argues:
I. The Food & Drug Administration Has Historically Been Too Slow To Approve New Treatments
II. Permitting Terminally-Ill Patients To Access Potentially Life-Saving Phase I Approved Drugs Will Not Discourage Patient Participation In Randomized Clinical Trials
III. Affirming The Decision Of The Original Panel Will Not Reduce Incentives For Manufacturers To Conduct Randomized Clinical Trials Of Available Drugs
Roger Pilon illuminates the disturbing judicial activism on display in the D.C. Circuit court, which last week reversed the panel decision in Abigail Alliance v. Eschenbach:
Baby Steps: “FDA May Ease Prescription-Drug Rules” … by setting up an intermediate regulatory classification for pharmaceuticals: “Behind-the-counter.”
Seth Faler suggests,
WSJ prints a letter from a formerly productive member of society incapacitated because the FDA and tort lawyers decided to destroy Merck’s ability to sell him a useful drug: