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.