What is most interesting about Rogers' dissent in Abigail Alliance (which in its essentials was the original panel's majority opinion) is that it would interpret a historical record showing a lack of regulation as evidence of a "tradition" supporting unrestricted liberty. (The dissent is correct that the historical record of regulation laid out by the majority shows only a tradition of prohibiting fraud, not a tradition of regulation to ensure efficacy and/or safety.) This move, if it had ultimately carried the day, would have provided support for finding a fundamental right of unimpeded access to new technologies, because there is no historical tradition of regulating these technologies.

I've thought about this argument in the context of attempts by Congressional conservatives to pass a law that would prohibit therapeutic cloning, the technique by which scientists seek to create an embryo with the genome of an adult cell and then harvest embryonic stem cells for research. No one has been able to make this process work in humans yet, but most scientists think it is possible and will be perfected sooner rather than later. The ultimate goal of therapeutic cloning is to one day be able to take a skin cell from a patient, create an embryonic stem cell line with the patient's genome, and then create individualized stem cell treatments that won't subject the patient to the problem of immune system rejection.

Would a Congressional prohibition of therapeutic cloning infringe a fundamental right? If we were to interpret a historical absence of regulation as equivalent to a history of affirmative support for an individual freedom, perhaps so: there is no tradition of the states or the federal government attempting to prevent anyone from seeking the health benefits of therapeutic cloning!

The Rogers' approach never had much of chance to survive review by either the en banc Circuit or the Supreme Court (although I am surprised that she and Ginsburg couldn't garner even one additional vote when the D.C. Circuit heard the case en banc). Here's an excerpt discussing the original panel decision from my forthcoming book, Stem Cell Century: Law and Policy for a Breakthrough Technology (which will be published by Yale University Press this fall):

As a practical matter, it seems unlikely that the U.S. Supreme Court would either uphold the D.C. Circuit [panel] ruling in Abigail Alliance or determine that the due process clause provides patients with a right to seek therapeutic cloning. The majority of justices currently serving on the U.S. Supreme Court have, in previous opinions, articulated a relatively narrow view of the substantive due process doctrine. Under this prevailing perspective, the only rights protected by the due process clause that are not explicitly enumerated in the Constitution are those specific rights that have been traditionally been recognized as such in Anglo-American law. In Washington v. Glucksberg, for example, the Court refused to recognize physician-assisted suicide as fundamental right under the due process clause, leaving legislatures to prohibit the practice if they see fit. The Court majority relied mainly on the observation that the practice of assisted suicide — and, indeed, suicide in general — enjoyed no historical tradition of support in the United States, or support in Great Britain prior to the American Revolution. More generally, the Court pronounced that substantive rights under the due process clause must be "deeply rooted in this Nation's history and tradition" and stated that constitutional rights cannot be "simply deduced from abstract concepts of personal autonomy."

The Abigail Alliance [panel] attempted to inoculate itself against the current Supreme Court's negative view of unenumerated rights by claiming that there is a "long-standing tradition in our Nation that would protect individual access to potentially life-saving medication." The factual support for this claim provided in the Abigail Alliance opinion is the lack of regulation of pharmaceuticals prior to the twentieth century, rather than any evidence of governmental recognition of an affirmative right. This approach turns the reasoning of Glucksberg on its head, shifting the burden of proof on the question of historical tradition from individuals claiming a right to government actors denying the existence of any such right, and it is not likely to be accepted by the Supreme Court's current majority.

For more on the policy and constitutional issues concerning therapeutic cloning, see my article Stem Cell Research and the Cloning Wars, 18 Stan. L. & Pol. Rev. 161 (2007), available on my SSRN page, or preorder the book on Amazon!