Individual Rights And The Right To Save Your Lifeby Doug Mataconis
Earlier this week I wrote about a particularly outrageous decision by the U.S. Court of Appeals for the District of Columbia which essentially held that terminally ill patients do not have the right to use drugs for purposes not approved by the Federal Drug Administration.
Today, the Cato Institute’s Roger Pilon, writing in the Wall Street Journal, demonstrates just how tragically and unjustifiabily wrong the Court of Appeals was:
The wheels of justice turn slowly, especially for the dying. On Tuesday the D.C. Circuit, sitting en banc, reversed a 15-month-old decision by a panel of the court that had recognized a constitutional right of terminally ill patients to access potentially life-saving drugs not yet finally approved by the Food and Drug Administration. Given the poor quality of Tuesday’s opinion in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach — “startling,” said the dissent — one wonders why it took so long. The opinion’s one virtue is that it brings out clearly how far modern “constitutional law” has strayed from the Constitution, a document written to protect liberty, not federal regulatory schemes.
Represented by the Washington Legal Foundation, Abigail Alliance is named for Abigail Burroughs, a 21-year-old college student who died of cancer in 2001. Their argument could not be more simple or straightforward, nor could Tuesday’s dissent, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, the majority in the earlier opinion. Citing the Fifth Amendment’s right to life, the Ninth Amendment’s assurance to the Constitution’s ratifiers that the rights retained by the people far exceed those named in the document, and the Supreme Court’s “fundamental rights” jurisprudence, Judge Rogers argued that the right to life, the right to self-preservation, and the right against interference with those rights — which the FDA is guilty of — are of one piece. They are deeply rooted in common law and the nation’s history and traditions, implicit in the concept of ordered liberty, and thus “fundamental.”
Indeed, it is startling, she noted, that the 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 have all been deemed fundamental, 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.” Because the rights at issue here are “fundamental,” she concluded, the court must apply, in judicial parlance, “strict scrutiny.” The burden is on the FDA to show why its interference is justified — to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.
This would seem to be especially true in cases such as this, where we’re dealing with people who, left only with the skills of contemporary medicine, are likely to die anyway. In such a situation, what justification is there for telling someone who is about to die that they can’t try an experimental therapy just because it hasn’t been approved by some bureaucrat in Washington ?
As Pilon notes, though, this case is about much more than whether the rights of the terminally ill. It has do to with just how screwed up Constitutional jurisprudence has become:
[T]he issues here go well beyond this case, which is doubtless why the court decided to rehear it en banc. And they go beyond liberal and conservative as well, as the mixed seven who joined Judge Griffith’s opinion should indicate. What we have here, arguably, is a revolt of sorts by Judge Rogers and Chief Judge Ginsburg against what passes today for “constitutional law.” Reducing that revolt to a simple question: Under a Constitution that expressly protects the right to life, how did we get to where government can effectively restrict the right, and the courts will do nothing ?
As Pilon notes, for liberals, the answer to that question is rather simple. Rather than worrying about fundamental rights and the intent of the Framers, they worry about sociology and economics; issues that ought to concern legislators rather than Justices
For conservatives, though, it involved a rejection of the Founders themselves:
[I]n Robert Bork’s The Tempting of America, where conservatives often turn, we find an answer. Describing what he calls the “Madisonian dilemma,” Judge Bork writes that America’s “first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second principle is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.” (emphasis added)
That turns Madison on his head. James Madison stood for limited government, not wide-ranging democracy. His first principle was that in wide areas individuals are entitled to be free simply because they are born free. His second principle was that in some areas majorities are entitled to rule because we have authorized them to. That gets the order right: individual liberty first, self-government second, as a means for securing liberty.
Yet we repeatedly see conservative jurists, as here, ignoring the true Madison — deferring to the legislature when their duty, as Madison put it, is to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” A perfect example is Justice Antonin Scalia’s dissent in a 2000 case, Troxel v. Granville, which found that Washington State’s grandparent visitation act violated the right of fit parents to control access to their children. Dissenting, Justice Scalia argued that although the parental right is among the unalienable rights proclaimed by the Declaration of Independence and the unenumerated rights retained pursuant to the Ninth Amendment, that amendment does not authorize “judges to identify what [those rights] might be, and to enforce the judges’ list against laws duly enacted by the people.” Thus, just as the Abigail Alliance majority did, he would defer to the legislature to tell us what those rights are — the very legislature that had extinguished the parental right that he had just located in the Ninth Amendment.
And that, in a nutshell, is what Robert Bork meant when he infamously referred to the Ninth Amendment as a “ink blot.” And it’s also why libertarians who think they can trust conservative judges are kidding themselves.