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A Court Makes Up a Right
The Founding Fathers and the FDA

Wednesday, May 3, 2006

THE U.S. COURT of Appeals for the D.C. Circuit discovered a new constitutional right yesterday: "the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor's advice, even where that medication carries risks for the patient" and has not been approved by the Food and Drug Administration. If you don't remember reading those particular words in the founding charter, don't kick yourself. An ideologically eclectic panel of the normally sober D.C. Circuit pulled this "right" out of thin air. If the full court, or the Supreme Court, doesn't take another look, it could sow the seeds of all kinds of mischief.

We're sympathetic to the plight of desperately ill people who may -- or may not -- be helped by experimental drugs that are just beyond their reach. Regulators and drug companies have taken some steps to address their need, and there may be more they can do to make unapproved therapies available to people ineligible to participate in clinical trials.

But since when did access to experimental therapies become a "fundamental right" -- defined in Supreme Court case law as a right deeply embedded in the fabric of American tradition and without which ordered liberty would not be meaningfully free? To root this right in tradition, the majority opinion -- written by the relatively liberal Judge Judith W. Rogers for herself and conservative Chief Judge Douglas H. Ginsburg -- cites the age-old right of "personal security," along with the fact that "the government has not blocked access to new drugs throughout the greater part of our Nation's history" and the notion that "an individual has a . . . right to refuse life-sustaining medical treatment." The flip side of this principle, the majority argues, must be "the right to access potentially life-sustaining medication where there are no alternative government-approved treatment options."

All of which, as newly appointed Judge Thomas B. Griffith argued in dissent, is a lot of hooey. The decision not to regulate an area over a long period of time does not create a right to be free of regulation in that area. As Judge Griffith wrote, "a tradition protecting individual freedom from life-saving, but forced, medical treatment does not evidence a constitutional tradition of providing affirmative access to a potentially harmful, and even fatal, commercial good." If this right is real, it potentially calls into question the whole fabric of drug regulation. Why do only terminally ill patients have it? Why doesn't an itchy eczema victim have a right to some new cream? Does the government have an obligation to fund the right for indigents who cannot afford access on their own? For that matter, why does the right only apply to drugs that have passed Phase I testing -- that is, preliminary safety trials? Why, in other words, doesn't the principle the court embraces create a right to LSD or marijuana, for which people have made all kinds of extraordinary medical claims?

In creating the legal regime that governs drug approvals, Congress left the decision of when to permit drugs to go to market to the FDA. The FDA's balancing of the competing interests of patients, public health and science may not be perfect. But the cure does not reside in the Constitution.

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