The Supreme Court refused Monday to review a ruling that terminally ill patients have no constitutional right to be treated with experimental drugs — even if that means the patient is likely to die before the medicine is approved.
A federal appeals court, siding with the Food and Drug Administration, last year said the government may deny access to drugs that have not gone through extensive testing and been certified “effective” by the FDA. That process can take years.
One of the plaintiffs was Frank Burroughs, whose daughter Abigail was denied access to experimental cancer drugs and died in 2001. The drug she was seeking was approved years later.
The court suggested Congress could change the law to broaden such access. But this sets the default setting of the U.S. Constitution directly on its heads.
America’s founding documents neither say nor imply that everything starts out banned, that the government then gets to decide whether and when to “permit access” to a medical treatment.
There may be some legitimate call to keep treatments off the market which are — in and of themselves — deadly. But drugs can be found relatively safe — certainly safer than allowing a terminal disease to reach its natural conclusion — and still held off the market while the FDA spends years trying to determine whether they’re sufficiently “effective.”
That’s an unjustified government intervention. Giving government the power to decide which medical treatments are “allowed” presupposes an infallibility which is absurd, given the recurring revelations of “impartial doctors” sitting on these committees and then moving on to take fat retirement paychecks from the very pharmaceutical firms they’re supposed to be overseeing.
Beyond that, there’s the fact that many less toxic treatments — natural herbs and vitamins, for instance — never make it into the pipeline for government testing and “approval,” since winning FDA approval takes millions of dollars, and no one stands to make back such an investment by submitting for testing some natural, less toxic herbal regime that can never be patented.
Benjamin Rush, the only medical doctor to sign the Declaration of Independence, warned that “Unless we put medical freedom into the Constitution, the time will come when medicine will organize into an underground dictatorship. … To restrict the art of healing to one class of men and deny equal privileges to others will constitute the Bastille of medical science. All such laws are un-American and despotic and have no place in a republic. … The Constitution of this republic should make special privilege for medical freedom as well as religious freedom.”
The court has been known to discover new rights, unknown to the founders, in shadows and penumbras. But here’s an actual, pre-existing right the founders knew about, but failed to articulate and enumerate only because they naively figured it was so obvious that there was no need.
The court should have accepted this case, as an opportunity to remedy that omission.