My colleague Jessie Hill, who has a forthcoming article on whether there is a constitutional right to make medical treatment decisions for oneself, offers the following thoughts about the Abigail Alliance decision.

It would probably be a gross understatement to say that most legal scholars will not be shocked by today's en banc decision in Abigail Alliance v. von Eschenbach. Yet, as I argue in a forthcoming article in the Texas Law Review (entitled "The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines"), there is ample support for the dissent's view that a long line of cases, including not only Roe v. Wade and Stenberg v. Carhart, but also Carhart v. Gonzales, and even, I might add, Jacobson v. Massachusetts, appear to recognize that the Constitution forbids government interference with individuals' attempts to protect their own health. The Abigail Alliance majority, however, points to cases denying access to medical marijuana and the unapproved cancer drug laetrile, and it distinguishes the abortion cases on the ground that here, there is "no proven therapeutic effect" for the forbidden medical treatment.

No proven therapeutic effect? In both Stenberg v. Carhart and Carhart v. Gonzales, the therapeutic value of the outlawed abortion procedure was hotly disputed. What is interesting about those cases is that the Court nonetheless allowed the plaintiffs to introduce evidence of medical efficacy, rather than simply deferring to the legislature's view. In the cases cited by the Abigail Alliance majority, by contrast, courts largely deferred to the legislature without considering any further medical evidence.

In my article, I argue that the question of how much deference should be given to the government when it finds medical facts is the key one lurking behind many cases dealing with the right to choose particular medical treatments, and it is one that is given insufficient attention by the courts. Rather, courts tend to reflexively view the issue as invoking government's traditional power to protect the public and, like the majority here, defer to the government's medical fact finding (which I refer to as the "public health" approach); or, alternatively, they view the issue as one growing directly out of the abortion and contraception cases and, like the dissent, at least carefully consider challengers' medical evidence challenging the government's evidence (which I refer to as the "autonomy" approach). In Abigail Alliance, there may be very good reasons for deferring to an administrative agency like the FDA regarding its view of the medical facts. Even if the result in Abigail Alliance may be the right one, however, it seems that the majority and dissent just talked past each other because of their failure to address the underlying disagreement over the appropriateness of deference -- in other words, who (doctors, administrative agencies, legislatures, courts) gets to decide whether a treatment in fact has sufficient therapeutic benefit.