A Constitutional Right to Drugs:

Today, in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, a divided panel of the U.S. Court of Appeals for the D.C. Circuit held that the Due Process Clause protects “the right of a mentally competent, terminally ill adult patient to access potentially life-saving . . . drugs, upon a doctor’s advice, even where that medication carries risks for the patient” and has not been approved for commercial sale by the Food & Drug Administration, but where the FDA has determined that the drug is safe enough for broad (“post Phase I”) testing on human subjects.

According to the majority opinion, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, this right “can be inferred from the [Supreme] Court’s conclusion in Cruzan v. Director, Missouri Department of Health that an individual has a due process right to refuse life-sustaining medical treatment.” The right at issue here, according to Judge Rogers, implicates the same fundamental issue “the patient’s right to make the decision about her life free from government interference.” Judge Thomas Griffith dissented.

Orin Kerr has more thoughts here.

UPDATE: In reference to Eugene’s post above, it is worth noting that the D.C. Circuit explicitly rejected relying on the “line of cases beginning with Griswold v. Connecticut, and continuing through Eisenstadt v. Baird, Roe v. Wade, and [Planned Parenthood of Southeastern Pa. v.] Casey,” and instead relied on the “more restrictive” approach embodied by the right-to-die cases, particularly Washington v. Glucksberg. Under the latter approach, the Due Process Clause only protects as fundamental those rights that are “objectively, deeply rooted in this Nation’s history and tradition,” and are “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist” were they not protected as such. Because the majority found the right claimed met this test, it did not have to consider whether the abortion cases — what the majority opinion termed the “personal dignity and autonomy” line of cases — also support the claim.

I see at least two possible reasons for the Court’s approach. First, by relying on the “more restrictive” Glucksberg approach — an approach that some of the more conservative justices have endorsed — the opinion is not staking out as bold a claim. Second, should the Roberts Court revisit, and perhaps even restrict or reverse, some of the abortion precedents, the D.C. Circuit’s holding would remain secure. Avoiding any reliance on the abortion cases would also seem to insulate the opinion from at least some potential criticism for being “activist.”

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