SCOTUS Rejects ‘Right to Live’ Case
By Curt Levey Posted in SCOTUS — Comments (5) / Email this page » / Leave a comment »
I was disappointed to hear that today the Supreme Court denied the plaintiff’s cert petition in Abigail Alliance v. von Eschenbach, a case in which the DC Circuit ruled en banc that there is no fundamental right to try to save one’s life through access to drugs not yet approved by the FDA. If there are any unenumerated fundamental rights – and the Supremes say there are – I would think the right to save your own life is one of them. It would seem to rank up there with the right to breathe air, and far above the right to kill your fetus. Moreover, as I said in a Federalist Society debate,
“It would be particularly startling if the state, which is constitutionally prohibited from regulating abortion procedures when it risks the health of the mother, were free to regulate pharmaceuticals when the regulation ensures the death of the patient.”
For details on the case and the views of others, see the online debate.
The other slippery slope
by AndrewHyman
The other slippery slope is creating unenumerated rights. While the Supreme Court may have done so in the past, it's done so without legitimate authority. The denial of cert in this case is a positive indication that the Court may be returning to legitimacy. The place for these arguments about experimental drugs is in Congress and the fifty state legislatures, IMHO. Legislators can create new statutory rights, and even new constitutional rights. That's not the proper role for the courts.
Re: Slippery Slope
by Curt Levey
<< If you say people can ignore the FDA and take all the potentially toxic drugs they want, you are setting a precedent for the dissolution of the FDA. >>
The argument is not that people should generally be allowed to ignore the FDA. It’s that when certain death is the only alternative, as was the case with 19-year-old Abigail Burroughs, there is no rational reason to “protect” a fully informed patient from unapproved drugs. Never mind that Abigail’s oncologist believed the drug at issue had a substantial chance of saving her life.
It may be in society’s best interests to sacrifice people like Abigail so that double-blind FDA trials can find enough recruits – as the government argues – but fundamental rights are individual rights. Society’s best interests come into play only when determining if there is a compelling interest that overcomes the individual right.
And by the way, as a proponent of limited government, I wouldn’t lose any sleep if the power of the FDA were diminished by a fundamental right to live.
move to Europe where it will likely be legal or Canada or Mexico.
For the one Abigail (I don't say this in making light of her), there are hundreds of others who could die because of a flip the other way.
Very interesting story and discussion.
by gideon1789
My hunch is that the natural right exists, but should not be judicially recognized.
One can exercise one's natural rights and still be in violation of positive law, without either the right or the law being invalid.
W.C. Fields for President!
www.shortenurl.com/7cxfm
The D.C. Circuit en banc opinion is correct. The whole purpose of the FDA is to make sure that we don't have thousands of people unintentionally killing themselves with drugs that have not yet been proven using the scientific method to help stop or prevent any disorder. If you say people can ignore the FDA and take all the potentially toxic drugs they want, you are setting a precedent for the dissolution of the FDA.