A federal appeals court ruled yesterday that terminally ill patients whose only chance of survival lies in investigational medicines should, essentially, suck it up and wait it out ’til the FDA rules that the drugs are 100 percent without risk.
That makes sense. I mean, if terminally ill patients take some drug without the FDA’s permission, it could be dangerous. They could die. Oh, wait …
Two judges dissented, pointing out the injustice of this situation:
The two dissenters said the ruling ignored the Constitution’s protection for individuals and their right to life, and instead bowed to “a dangerous brand of paternalism” that put the government’s interest first.
The majority, however, says people don’t have the right to “assume risk” that may save their lives unless a regulatory body says they can:
Judge Thomas B. Griffith, writing for the majority, said a right to experimental drugs was not deeply rooted in the nation’s history and tradition. Judge Griffith said the right of self-defense “cannot justify creating a constitutional right to assume any level of risk without regard to the scientific and medical judgment expressed through the clinical testing process.”
Sorry you’re dying, but we have rules and procedures, mind you This is no time for attempts at self-preservation, we have a bureaucracy to run here!
But perhaps I’m making this out to be more clear-cut than it is. The group filed the suit under a 5th Amendment claim, saying that not allowing patients these drugs deprived them their right to life. Perhaps the judges were not so much ruling on whether or not dying patients should be allowed to take test drugs but whether or not they have a constitutional right to do so. One of the judges in the majority noted that this is perhaps a matter better left to Congress than the courts. If these judges in the majority are truly constitutional purists, so be it. I think there are major merits to originalist interpretations. But as one of the dissenters notes:
“In the end, it is startling,” Rogers wrote, that the Constitution has been read to include unnamed “fundamental rights” to marry, to control a child’s education, to have sex in private and to have an abortion, “but the right to save one’s life is left out.”
The group who brought the suit, the Abigail Alliance for Better Access to Developmental Drugs, said they’ll appeal to the Supreme Court.
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