I haven't blogged about Abigail Alliance since the panel decision was handed down, but after David's post I thought I would add my two cents that the en banc decision was correct. As the lopsided 8-2 vote hints, this wasn't a close case: the doctrine of substantive due process just isn't as broad as the dissent wants it to be.

  To be clear, I prefer the dissent's conclusion as a matter of policy. If it were up to me, I would let the terminally ill take whatever experimental potentially life-saving drugs they can get. The idea that the government would deny the terminally ill the means to try to save their own lives in this way is abhorrent to me. But last I checked, my personal views of sound public policy didn't inform the meaning of the founding charter of the United States Government.

  In his post below, David suggests that the en banc D.C. Circuit was wrong because guaranteeing the "right to life" is specifically mentioned in the Declaration of Independence as a foundational purpose of government. If I understand David correctly, he would say that if the Declaration mentions a right specifically then measures related to it must be "deeply rooted in this Nation's history and tradition" and therefore "fundamental" under the Due Process clause. Describing the right more narrowly is merely "clever wordplay."

  But this approach seems quite problematic to me. First, the Declaration of Independence does not only mention the right to life; it mentions the right to "life, liberty, and the pursuit of happiness." It would be odd if the Constitution triggered strict scrutiny of any law that regulates "liberty" or "the pursuit of happiness." It would make me quite happy to steal my neighbor's Porsche and drive around DC at 90 mph; the fact that the laws of private property and local traffic regulations block my pursuit of happiness in this way shouldn't mean that they are subject to strict scrutiny. But if the test is whether the Declaration mentions the right, then I'm not sure how we avoid such a result.

  Second, while David dismisses the narrow description of the right as "clever wordplay," it seems to me that this "wordplay" is required by the same Supreme Court decision that requires the right to be "deeply rooted in this Nation's history and tradition" in the first place. Washington v. Glucksberg goes to significant lengths on the issue, emphasizing that "we have a tradition of carefully formulating the interest at stake in substantive due process cases" and requiring a "careful description" that is "precise." The D.C. Circuit was bound by that precedent, and as far as I can tell the en banc majority was faithful to its directions.