Tragic Wordplay" and the Right to Life

The Huffington Post
Adam Freedman
Tragic Wordplay" and the Right to Life

Until a few days ago, terminally ill patients had a constitutional right to access potentially life saving drugs - even if those drugs have not yet been approved by the FDA.

On Tuesday (August 7), in the case of Abigail Alliance v. Eschenbach, the US Court of Appeals for the DC Circuit held that no such right exists, reversing last year's decision in the Abigail case by - the DC Circuit. In other words, the court reversed itself. Ooops.

The issue is clearly one of life and death, but in the courts it came down to a battle of semantics.

The FDA says that you cannot acquire prescription medications without the FDA's say-so, even if you are dying and, presumably, have nothing to lose. Courts review this sort of administrative action, but they tend to defer to the executive branch - unless they find that a "fundamental right" is threatened.

The first panel of the DC Circuit found that the FDA's actions (in denying drugs to terminally-ill patients) interfered with the "right to life," which implicitly includes the right to preserve one's life through medication. Stated this way, the right is "fundamental" because it is - as constitutional jurisprudence requires - "deeply rooted in the nation's history and traditions." So in the first Abigail decision, the DC Circuit held that the FDA could not justify its meddling with this fundamental right.

But in the second Abigail holding, the DC Circuit described the contested right differently: "the right to access experimental and unproven drugs in an attempt to save one's life." Stated in these terms, the right hardly seems fundamental - indeed, the court's words conjure up the image of some deluded sicko grasping for the nearest bottle of snake oil. So much for respect for the terminally ill.

In any event, the DC Circuit has now decided that this right is not fundamental. After all, since the FDA has only been around for a few decades, the "right" to circumvent its rules can hardly be "deeply rooted" in our history.

The dissent assailed the majority's reasoning as "tragic wordplay" and Roger Pilon, writing in the Wall Street Journal lambasted the decision as "linguistic legerdemain." The critics are correct. The right at stake in Abigail is not the right to circumvent FDA rules - to describe it so gets the issues exactly backward. For centuries before the FDA existed, a dying man or woman had the right to take whatever medication they thought might save them. It is the FDA's interference with that "deeply rooted" right that requires strict scrutiny by the courts.

This issues doesn't neatly divide into liberal vs. conservative, as Pilon (a civil libertarian) notes. In finding a "right to life" that includes a right to self-medicate, the DC Circuit's first panel searched in the penumbra (shadows) of certain other rights - the judicial technique made famous by Roe v. Wade and abhorred by conservatives (even though the opinion in the first Abigail decision included conservative judge Douglas Ginsburg). The DC Circuit's later opinion, describing the right more narrowly was supported by liberal judges who wish to protect the modern regulatory state from judicial activism which - hey! - suddenly doesn't look so great.

The Abigail story may not be over yet. The Supreme Court has a chance to review the DC Circuit's decision. Let's hope they do - and let's hope they're in no mood for word games.