Yesterday, in an 8-2 decision, the D.C. Circuit Court denied the creation of a right for dying patients to have access to experimental drugs which have not yet received FDA approval. In its opinion in the case of Abigail Alliance, et al., v. Eschenbach, et al., the Court of Appeals held that there is no fundamental right of terminal patients to access these treatments.
The Alliance was seeking, and will most likely continue to seek through an appeal to the United States Supreme Court, access to drugs that the FDA has deemed safe enough for continued human testing, but not yet cleared for commercial sale. This continued testing may take several months or even years; many of the patients represented in this litigation do not have such time to wait for the completion of this testing. A three-judge panel had previously held that these terminally ill patients had a right to assume this risk, but this decision was vacated and a new hearing, leading to the decision Tuesday, was ordered.
The dissenters argued that the issue in this case was the need to save the lives of these patients. The majority, however, disagreed with The Alliance’s argument that preventing patient access to these experimental drugs denied them of their Fifth Amendment rights and deprived them of their right to self-defense. The majority opinion stated that such a right to self-defense is not entrenched in our nation’s history, and that such right must be balanced against “scientific and medical judgment”.
It would seem likely that The Alliance will ask the United States Supreme Court to hear their arguments. However, whether the Court decides to hear the case is uncertain.
Related Links: New York Times, ScotusBlog