About a week ago the United States Court of Appeals for the DC Circuit told a lower court that it was wrong to dismiss out of hand and must reconsider a claim “whether the Due Process Clause [of the U.S. Constitution] protects the right of terminally ill patients to decide, without FDA interference, to assume the risks of using potentially life-saving investigational new drugs that the FDA has yet to approve . . .” See Abigail Alliance for Better Access to Developmental Drugs v. FDA. The opinion is filled with qualifiers, as it must be given the state of constitutional law in this area, but it is instructive for just that reason and nonetheless remarkable.
Since roughly the Progressive Era, the principle of liberty has been under direct attack by those who have largely succeeded in gutting the Constitution’s due process clauses. Previously, the U.S. Supreme Court understood the Constitution’s guarantee of “due process” to protect individuals against legislative acts that were not enacted in furtherance of legitimate governmental purposes, but were mere acts of force wielded at the behest of majority vote. In the 1874 case of Loan Association v. Topeka, for instance, the Court wrote that:
“[T]here are…rights in every free government beyond the control of the State.”
“There are limitations on such power which grow out of the essential nature of all free governments….No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B….”
“To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law…. This is not legislation. It is a decree under legislative forms.”
The legal doctrine of “substantive due process” embodied the idea that laws violating certain pre-political, moral rights, which establish the purposes of government, may not be upheld, regardless of whether they were enacted with all the right procedures in place. Today the phrase is almost an epithet in many judicial and academic circles because the judiciary has largely institutionalized the view that “due process” does not properly speak to substantive limits on the content of legislation. As the Supreme Court reminded us just last term in the controversial Kelo v. New London eminent domain case, today the government most certainly is able “to lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals,” assuming that before doing so the legislature makes a determination that it will result in some public benefit.
And so it is worth some note that an appellate court has said “[d]espite the FDA’s claims to the contrary . . . it cannot be said that government control of access to potentially life-saving medication ‘is now firmly ingrained in our understanding of the appropriate role of government’ so as to overturn the long-standing tradition of the right of self-preservation.'” It may be difficult for non-lawyers to grasp that this watered down statement is an unusually straightforward defense of the principle of liberty, particularly if one reads the opinion and sees how much more water is spilled. But it may help to consider the thorough confidence of the dissent, which argues that by allowing a lower court to even hear a case on this subject—presenting the most minimal risk to the FDA’s total control over what drugs terminally ill individuals may ingest—the Court has engaged in judicial subjectivism and invented a new individual right “deduced [not from law, but] from abstract concepts of personal autonomy.”
For terminally ill patients to decide solely on their own what drugs they should take ignores the “intense and complicated scientific and moral debates about how best to regulate new drugs” and, according to the dissent, is an affront to the “particular balance already struck by Congress and the Executive.” The right thing to do, under the law as understood by the dissent—which in my estimation is more representative of the majority of judicial opinion—is for these patients to place their faith in democracy, “in which the voices of votes allied with these respondents may one day be heard in the halls of Congress.”
The DC Circuit has said, haltingly, “No,” at least not in this case.
(case citations have been omitted for ease of reading)