The Court Gives and the Court Takes Away

Reason Hit & Run ^ | August 7, 2007 | Kerry Howley

[JTN]

Last year, a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit ruled that patients have a constitutional right to purchase potentially lifesaving developmental medicines prior to FDA approval, a huge (and hugely controversial) win for patient autonomy. The D.C. Circuit later granted en banc rehearing, and that opinion(pdf) was released this morning. The court now asserts that the Due Process Clause has nothing much to say about the right of the terminally ill to defend themselves against the onslaught of disease; it is the FDA's prerogative to deem a medicine too dangerous to ingest, even if the patient in question is about to die. Judges Ginsberg and Rogers, who together formed the majority in the original opinion, dissented.

Part of the Abigail Alliance's case hinged on the fact that the prohibition on trade in unapproved pharmaceuticals is a relatively new development; the court disputes this, and adds:

True, a lack of government interference throughout history might be some evidence that a right is deeply rooted. But standing alone, it cannot be enough. If it were, it would be easy to employ such a premise to support sweeping claims of fundamental rights. For example, one might argue that, because Congress did not significantly regulate marijuana until 1937, relatively late in the constitutional day, see Gonzales v. Raich, 545 U.S. 1, 11 (2005), there must be a tradition of protecting marijuana use. Because Congress did not regulate narcotics until 1866 when it heavily taxed opium, a drug created long before our Nation’s founding, see United States v. Moore, 486 F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J., dissenting), it must be that individuals have a right to acquire and use narcotics free from regulation...Indeed, creating constitutional rights to be free from regulation based solely upon a prior lack of regulation would undermine much of the modern administrative state, which, like drug regulation, has increased in scope as changing conditions have warranted.

The opinion cites Raich again elsewhere. The upshot: An opinion denying cancer patients access to a substance that would ease their pain (marijuana) is being used as precedent in an opinion that would deny cancer patients access to a substance that might... halt the spread of the cancer.

My August/September feature on terminally ill patients, which includes reporting from the en banc rehearing, is here. Ron Bailey's take on the Abigail Alliance is here.

[JTN]

Via The Agitator, who comments:

To make matters worse, the court cited Raich, which said the federal government can deny medical marijuana to sick people who need it, to affirm its position. Thus, thanks to the extra-constitutional drug war, and the absurd lengths the courts have gone to find some constitutional justification for it, the bureaucrats at the FDA can now deny terminally sick people the medication that could save their lives. And not even because it isn't safe, but because it hasn't been proven effective, at least according to standards set by the FDA.

This isn't surprising. It's a predictable application of drug war philosophy. If the government can stop you from putting drugs in your body that make you high, it's a short leap to say that the government can let you die while waiting for drugs that could save your life, albeit still in the name of "protecting" you.

But that doesn't make it any less appalling. If the Ninth Amendment doesn't include the right for a person with a deadly disease to put potentially life saving medication into his body, then it means nothing at all. And I guess that's where we are. It means nothing at all.

I can't imagine what it must feel like to be dying, or to watch a loved one die, while the FDA hems and haws over whether it's going to let you live or not. I hope I never have to.

[JTN]

Ping

[an amused spectator]

Look - our black-robed godlettes have ruled.

Mere mortals like you and I must stand behind the door like small children, listening without comprehension to the deep and reasoned pronunciations that will be handed to us like stone tablets from the Mount, to be obeyed without questioning...

[microgood]

This supports my belief that to be a federal judge the portion of the brain which provides common sense is surgically removed before they are allowed to sit on the bench.

[BlazingArizona]

The court now asserts that the Due Process Clause has nothing much to say about the right of the terminally ill to defend themselves against the onslaught of disease; it is the FDA's prerogative to deem a medicine too dangerous to ingest, even if the patient in question is about to die.

Sorry, folks, but if I have a serious disease, the very last thing I give a crap about is the legality of the medications I choose. Let the lawyers fight about that sort of thing after I'm gone.

[traviskicks]

Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.

[dcwusmc]

Wonder where the drug warriors are tonight?????

[Calvinist_Dark_Lord]

It is a principle of jurisprudence that the court should not make a ruling that cannot be enforced and will not be obeyed.

The reason is simple: Respect for the rule of law and the judicial system is reduced when such rulings are made. Perhaps the court should remember the futility of Prohibition, which was unquestionably constitutional, before it makes such stupid pronouncements.

[Clinging Bitterly]

...because Congress did not significantly regulate marijuana until 1937, relatively late in the constitutional day, see Gonzales v. Raich, 545 U.S. 1, 11 (2005), there must be a tradition of protecting marijuana use. Because Congress did not regulate narcotics until 1866 when it heavily taxed opium, a drug created long before our Nation’s founding, see United States v. Moore, 486 F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J., dissenting), it must be that individuals have a right to acquire and use narcotics free from regulation...

Well, yes.

The constitution could not, and was never intended to, serve as a document enumerating all of the people's rights, nor for that matter, to give them any at all. Rather, it is intended to look upon writings of the history of nature and civilization to determine those things that are held as rights. Think, for one, of privacy. Not in the constitution, but the foundation of Roe V. Wade, nevertheless.

Such rights are limited by government only through the specific causes and powers granted to it by the constitution. Further, government use of those powers are limited to only those things that are necessary to further the public good.

Indeed, (being) free from regulation based solely upon a prior lack of regulation...

...would be the default unless and until a legitimate reason to alter it and the specific power to do so are established by the government.

Perhaps a bit murky, but it's clear enough with whom rests the benefit of the doubt.