Attorneys Jim Beck and Mark Hermann reply to the comment thread at this post critiquing their commentary on Abigail Alliance. They write in part:

We realize that no court has yet found a drug company to be a state actor in this context, but, until now, no one had created an environment in which scores of intelligent, motivated plaintiffs' counsel would be pursuing multiple theories to try to achieve that result. As our full post (not just the excerpt posted on Volokh) discussed, even without the constitutional right there's already been litigation -- so far unsuccessful, to be sure -- seeking to force drug companies to provide experimental drugs when they've decided to terminate clinical trials. This isn't some paranoid fantasy, as some of the Volokh commentators suggest.

If a court were to create a constitutional right for terminally ill patients to ingest experimental drugs, cases asserting that right will (quite properly) hold immense emotional appeal for the plaintiffs. Lawyers will line up left and right to take those cases, and judges will bend over backwards to find a remedy. We're litigators, that's something we know. . . .

We appreciate the constitutional subtleties involved in all of this, but, frankly, the companies put at the center of the fray -- those who invent and manufacture the drugs -- will spend years litigating their way out of this trap, if courts choose to create it. And even when they win, they lose, both in terms of $$$ spent on yet another way of keeping lawyers busy billing time, and in terms of bad publicity.

In my own defense, I would note that I acknowledged that suits of the sort Beck and Hermann (and their clients) fear have already been filed, and that drug companies' near-certain victory against such suits does not make them any less expensive to litigate. As I wrote: "I certainly understand why drug manufacturers would be wary of such suits — after all, even suits with little merit can be costly to defend against — I just don't think such suits would ever be successful."