Wednesday, December 20, 2006

Another word on the Abigail decision

This is from my brother, a lawyer, on the Abigail decision. Probably a little more reasoned than my tantrum last week about this.

"[T]hat ruling was really, well, weird.

i googled it and came upon this summary which was pretty good:

juvanshealthlawupdate.typepad.com

so whats going on is that DC circuit is "finding" (quite literally discovering) a "new" right that is protected by the 14th A Due Process Clause (DPC).

Realize that these "discoveries" are very important - see e.g. protecting the rights of homosexuals to engage in sodomy (Lawrence v. Texas), right to privacy (and thus, right to abortion) (Roe).

So, as the blog points out, the DC Cir applied the "Glucksberg Test" to determine whether the right asserted is protected by the DPC. They obviously did, and, as Groopman points out, the really "weird" part is the use of Cruzan as precedent.

It doesn't seem to follow that a right to be free of battery, which is required for liberty/democracy/etc, also requires "the right to access potentially life-sustaining medication where there are no alternative government-approved treatment options."

(At this point he reads the ruling)...

"[H]ere is the holding:

"Terminally ill, mentally competent adult patients had a due process right to informed access to potentially life-saving investigational new drugs determined by the Food and Drug Administration (FDA) to be sufficiently safe for expanded human trials, where there were no alternative government-approved treatment options."

i think this means:

a) you are going to die
b) you are sane
c) thus you get access to drugs past phase I trial (which means drugs are in, or suitable for, phase II human trials - thus humans are getting the drugs anyway)
d) if there are no FDA approved drugs on the market

this seems distinct from what you say on your blog entry (sort of a anyone gets anything approach) but i just read your entry once so perhaps not.

i've skimmed the opinion and all i can say is that it is a pretty damn compelling read. i think Groopman suggested that it's ripe for reversal but i'm not entirely sure. Certainly an expansive view of the right to unregulated drugs is unlikely to be adopted, but, in my ignorance, i think points A) - D) above seem reasonable and potentially a constitutionally protected right."

Stated that way, it does seem more reasonable than my initial reaction, and I hope he's right. Thanks Julian Rosielle, Esq. And so, for real this time, Happy Holidays.

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