Judge Judith Rogers' dissent in Abigail Alliance is quite strong. It also may be the only time she and Chief Judge Douglas Ginsburg find themselves allied against the rest of their court. Although I somewhat skeptical of the dissent's claims, I think it is worth quoting from the opening of her 29-page opinion at length.

Today, the court rejects the claim that terminally ill patients who have exhausted all government approved treatment options have a fundamental right to access investigational new drugs. The court's opinion reflects a flawed conception of the right claimed by the Abigail Alliance for Better Access to Developmental Drugs and a stunning misunderstanding of the stakes. The court shifts the inquiry required by Washington v. Glucksberg, 521 U.S. 702 (1997), by changing the nature of the right, by conflating the right with the deprivation, and by prematurely advancing countervailing government interests. The court fails to come to grips with the Nation's history and traditions, which reflect deep respect and protection for the right to preserve life, a corollary to the right to life enshrined in the Constitution. The court confuses this liberty interest with the manner in which the Alliance alleges that the liberty has been deprived, namely by denying terminally ill patients access to investigational medications under the narrow conditions described by the Alliance. The court conflates the inquiry as to whether a fundamental right exists at all with whether the government has demonstrated a compelling interest, when strictly scrutinized, rendering its restrictive policy constitutional.

These missteps lead the court to rely upon how rights and liberties have been limited and restricted — addressing regulations to prevent fraud in the sale of misbranded and adulterated medications or safety restrictions applicable to all medicines for any palliative purpose — which says little about the historic importance of the underlying right of a person to save her own life. . . .

In the end, it is startling that the oft-limited 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 even if it results in one's own death or the death of a fetus have all been deemed fundamental rights covered, although not always protected, by the Due Process Clause, 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. This alone is reason the court should pause about refusing to put the FDA to its proof when it denies terminal patients with no alternative therapy the only option they have left, regardless of whether that option may be a long-shot with high risks. . . .

It bears outlining the history and common law basis for the Alliance's claim in order to demonstrate, once again, that the history and traditions of this Nation support the right of a terminal patient, and not the government, to make this fundamentally personal choice involving her own life. Because judicial precedents and the historical record require strict scrutiny before upsetting rights of this magnitude, the FDA must demonstrate a compelling governmental interest before its policy restricting access can survive.

Whether or not one agrees with Judge Rogers' conclusions, it is hard to deny that the right at issue here would seem to fit well among those unenumerated rights the Supreme Court has recognized before. Indeed, some right to voluntarily submit to medical treatment without government approval would seem to be a stronger candidate for constitutional protection than some of the other rights that have found court favor in the past. As I noted before the original panel opinion sought to vindicate the right asserted here without relying upon the Supreme Court's still-controversial sexual liberty and abortion cases, focusing instead on the narrower test established in Glucksberg. In the end, I am not sure the dissent's arguments in Abigail Alliance carry the day, but I think Judge Rogers makes a good go of it.