Terminally Ill Patients’ Right to Get Potentially Life-Saving Medication:

I just read the D.C. Circuit’s opinion that recognized “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.” I’m sure others will say plenty about the usual unenumerated rights debates; but I wanted to raise a question that I didn’t see discussed in the D.C. Circuit decision — why isn’t Roe v. Wade (as preserved in Casey v. Planned Parenthood) strong precedential support for that decision?

Roe concluded that the Constitution secures a right to an abortion, but it may be more accurate to say that it secured two different, though related, rights. First, it secured a right to an abortion during the first two trimesters (Casey has since cut this back to before viability); the government is entitled, especially after Casey, to regulate such abortions, but it can’t prohibit them. This right vindicates the woman’s right to choose not to bear a child.

Second, though, Roe held that even after viability — when the state is generally entitled to protect fetal life, and thus to ban most abortions — the woman still has a right to an abortion “when it is necessary to preserve the life or health of the mother.” This right does not vindicate the woman’s right to choose not to bear a child, since absent the threat to the woman’s life, she can no longer get an abortion. Its purpose must be to vindicate the woman’s right to protect her own life and health, even using a medical procedure that will kill the now-viable fetus.

Now of course those who strongly oppose Roe and Casey might not want to see them extended; one error, they’d reason, doesn’t require others.

But if one accepts this second abortion right that I discussed above, or one is at least willing to accept it as binding precedent, why doesn’t this precedent strongly point towards recognizing terminally ill patients’ right to get potentially life-saving medication? (Note, by the way, that this is a right in the negative liberty sense of freedom from government prohibition, not a positive entitlement to government funding to the medication.) If pregnant women are entitled to protect their lives or even just their health using medical procedures, why don’t others patients have an equal entitlement?

True, the government may have an important interest — which is generally absent as to abortions, which tend not to be dangerous as a rule — in protecting a patient’s life and health against the potential dangers of experimental drugs. Yet surely this interest is extremely weak when the patient is already terminally ill, and the risks of doing nothing probably far outweigh the risks of trying something.

So can it be that a person has a constitutional right to get potentially life-saving treatment, but only when that potentially life-saving treatment involves the killing of a viable fetus that she is carrying?

I put the question (and much of this post) in an intentionally provocative way, to make it more fun to read; but I should stress that it is a real question, not just a rhetorical one, and there may well be important arguments that I’m missing. Please do let me know what those arguments might be.

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