[Jonathan Adler, August 10, 2007 at 9:54am] Trackbacks
Roger Pilon on Abigail Alliance:

The Cato Institute's Roger Pilon takes to the WSJ editorial page to lambaste the D.C. Circuit's Abigail Alliance decision.

Judge Thomas Griffith, who had dissented in the earlier opinion but wrote now for the majority, recast the right at issue as "the right to access experimental and unproven drugs in an attempt to save one's life." Through such "tragic wordplay," as the dissent put it, the right ceases to be "fundamental," under Supreme Court precedents, because it is "not deeply rooted in the Nation's history and traditions."

So described, the right is not "deeply rooted," of course, because the very idea of "experimental and unproven drugs" implies a regulatory regime like the FDA, and that is a recent development. Yet as the dissent detailed, for most of our history individuals were free to take whatever drugs they wanted without a doctor's prescription. It was only in 1951 that Congress created a category of prescription drugs. Then in 1962 it began requiring drug companies to conduct extensive tests to ensure drug "efficacy," which led to long delays for drug approval and to the deaths of countless patients who would gladly have borne the unknown risks for a chance at life.

As a legal matter, what Judge Griffith achieved with his linguistic legerdemain was a shift in the burden of proof: No longer would the government need to justify its restrictions; the dying would have to try to overcome those restrictions. But that would be impossible because now the court would no longer strictly scrutinize the government's rationale. Rather, it would apply a "rational basis" test under which the government would win as long as it had any reason for restricting access. Deference so complete, the dissent noted, amounts to nothing less than "judicial abdication."

Plainly, the 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?

. . . liberal jurists could rule against Abigail Alliance to ensure the dominance of the regulatory regime. Conservative jurists, viewing that regime as "settled law," could do likewise to avoid even the appearance of judicial activism. The approach of liberals is understandable: Long ago they abandoned the written for the "living" Constitution, which enables ad hoc adjudication, the rule of law notwithstanding. The approach of conservative "originalists," however, is less easily explained, since they purport to take the Constitution seriously.

For those without a WSJ Online subscription, Pilon's op-ed is also available on the Cato website here.

Related Posts (on one page):

  1. Abigail Alliance and therapeutic cloning
  2. Abigail Alliance -- The Practitioners Respond:
  3. Roger Pilon on Abigail Alliance:
  4. A Practitioner's Perspective on Abigail Alliance:
  5. More on Abigail Alliance:
  6. Judge Rogers' Abigail Alliance Dissent:
  7. Jessie Hill on Abigail Alliance:
  8. Some Thoughts on Abigail Alliance:
  9. No Constitutional Right to Drugs:
Hans Bader (mail):
Roger Pilon's excellent Op/Ed aptly highlights some internal inconsistencies of the majority opinion, and some of the ways it went astray in eviscerating terminally ill patients' right to live.
8.10.2007 12:50pm
anonVCfan:
Pilon writes this:

Yet as the dissent detailed, for most of our history individuals were free to take whatever drugs they wanted without a doctor's prescription. It was only in 1951 that Congress created a category of prescription drugs. Then in 1962 it began requiring drug companies to conduct extensive tests to ensure drug "efficacy," which led to long delays for drug approval and to the deaths of countless patients who would gladly have borne the unknown risks for a chance at life.

As a legal matter, what Judge Griffith achieved with his linguistic legerdemain was a shift in the burden of proof: No longer would the government need to justify its restrictions; the dying would have to try to overcome those restrictions. But that would be impossible because now the court would no longer strictly scrutinize the government's rationale. Rather, it would apply a "rational basis" test under which the government would win as long as it had any reason for restricting access. Deference so complete, the dissent noted, amounts to nothing less than "judicial abdication."


He's certainly correct to note that how one frames the right at issue tilts the playing field considerably.

The rest of it, I find difficult to understand. How does the right to experimental drugs follow from the fact that Congress didn't create a prescription drug category until 1951? Congress didn't regulate a lot of things before the 20th Century. Does that mean that there's a constitutional right to deregulation?

As for his alleged shift in the burden of proof, I think he's the one using "linguistic legerdemain." Whenever a plaintiff asks for a new substantive due process right, the plaintiff has the burden of proof to show that the right exists or should be recognized. That's what I take from Washington v. Glucksberg, anyway. If the right exists, then the government has the burden of proof to justify whatever actions it takes that happen to infringe that right. Mr. Pilon is probably smarter and better-read than I am on these sorts of things, so I suspect that I've missed something. But as it stands right now, I'm not convinced by his op-ed.
8.10.2007 1:24pm
markm (mail):
"Under a Constitution that expressly protects the right to life"

Exactly where is that?
8.10.2007 1:29pm
anonVCfan:
markm,


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

5th Amendment.

Doesn't answer the question completely, but there is a right to "life" in there.
8.10.2007 1:59pm
David M. Nieporent (www):
As for his alleged shift in the burden of proof, I think he's the one using "linguistic legerdemain." Whenever a plaintiff asks for a new substantive due process right, the plaintiff has the burden of proof to show that the right exists or should be recognized.
I think you're missing his point. The "linguistic legerdemain" he refers to is the redefinition of the right from the one posited by the plaintiffs -- the right to try to save one's life to the right -- to the much more narrowly gerrymandered "right to take experimental and unproven drugs," because the latter can't be deeply rooted in our traditions since the

It would be like a plaintiff suing over some FAA restrictions based on the right to travel and the court redefining the right to take a particular model of airplane, and then saying that since this model of airplane didn't exist in our nation's history, that can't be a fundamental right.

As for your assertion, I believe Pilon is rejecting the notion that the burden of proof should be on the individual to demonstrate that he possesses liberty, in favor of a Barnettian presumption of liberty.
8.10.2007 5:38pm