Federal Court Rules You Don’t Have The Right To Try To Save Your Lifeby Doug Mataconis
The U.S. Court of Appeals for the District of Columbia Circuit ruled today that terminally ill patients do not have the right to decide for themselves whether a potentially risky, but possibly life-saving, treatment is in their best interest:
WASHINGTON — Terminally ill patients do not have a constitutional right to be treated with experimental drugs, even if they likely will be dead before the medicine is approved, a federal appeals court said Tuesday.
The ruling by the U.S. Court of Appeals for the District of Columbia Circuit overturned last year’s decision by a smaller panel of the same court, which held that terminally ill patients may not be denied access to potentially lifesaving drugs.
The full court disagreed, saying in an 8-2 ruling that it would not create a constitutional right for patients to assume “any level of risk” without regard to medical testing.
“Terminally ill patients desperately need curative treatments,” Judge Thomas B. Griffith wrote for the majority. But “their deaths can certainly be hastened by the use of a potentially toxic drug with no proven therapeutic benefit.”
In other words, if you’re dying you still don’t have the right to take the risk of undergoing a treatment that, while it could kill you, could also cure you. Your wishes, your life, your choice to take the risk that a new treatment might mean the difference between dying in a month and seeing your child graduate college…none of that matters, because the government knows better than you do.
One of the two dissenters, Judge Judith Ann Rogers, said the following:
Today, the court rejects the claim that terminally ill patients who have exhausted all government approved treatment options have a fundamental right to access investigational new drugs. The court’s opinion reflects a flawed conception of the right claimed by the Abigail Alliance for Better Access to Developmental Drugs and a stunning misunderstanding of the stakes. The court shifts the inquiry required by Washington v. Glucksberg, 521 U.S. 702 (1997), by changing the nature of the right, by conflating the right with the deprivation, and by prematurely advancing countervailing government interests. The court fails to come to grips with the Nation’s history and traditions, which reflect deep respect and protection for the right to preserve life, a corollary to the right to life enshrined in the Constitution. The court confuses this liberty interest with the manner in which the Alliance alleges that the liberty has been deprived, namely by denying terminally ill patients access to investigational medications under the narrow conditions described by the Alliance. The court conflates the inquiry as to whether a fundamental right exists at all with whether the government has demonstrated a compelling interest, when strictly scrutinized, rendering its restrictive policy constitutional.
These missteps lead the court to rely upon how rights and liberties have been limited and restricted — addressing regulations to prevent fraud in the sale of misbranded and adulterated medications or safety restrictions applicable to all medicines for any palliative purpose — which says little about the historic importance of the underlying right of a person to save her own life. . . .
In the end, it is startling that the oft-limited rights to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one’s own body even if it results in one’s own death or the death of a fetus have all been deemed fundamental rights covered, although not always protected, by the Due Process Clause, but the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life. This alone is reason the court should pause about refusing to put the FDA to its proof when it denies terminal patients with no alternative therapy the only option they have left, regardless of whether that option may be a long-shot with high risks. . . .
It bears outlining the history and common law basis for the Alliance’s claim in order to demonstrate, once again, that the history and traditions of this Nation support the right of a terminal patient, and not the government, to make this fundamentally personal choice involving her own life. Because judicial precedents and the historical record require strict scrutiny before upsetting rights of this magnitude, the FDA must demonstrate a compelling governmental interest before its policy restricting access can survive.
Which brings to mind this particular provision of the Constitution:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
As well as this one:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Where, please tell me, does it say in the Constitution that the Federal Government has the right or the authority to tell someone who is terminally ill, or anyone for that matte, what chemical substances they can put in their bodies, and for what purpose ?
And, more important, where is the justice in a legal system where people who are dying are forbidden from doing everything they want to do to try to stay alive ?