DC Circuit: No Constitutional Right To Experimental Medicines
Bad Policy, But Good Law - and Some Thoughts on Tradition and Unenumerated Rights
By Dan McLaughlin Posted in Law — Comments (5) / Email this page » / Leave a comment »
The en banc DC Circuit holds that there's no constitutional right for the terminally ill to take experimental but potentially life-saving drugs while they are being tested for safety and effectiveness by the FDA. This decision is bad public policy, but it's good law; it's clear from reading the arguments made for the plaintiffs that there was no way to describe the right that would even remotely resemble a guarantee protected by the Constitution.
In the process, the court discusses but rejects an idea that has long intrigued me - that unenumerated rights protected by the Ninth Amendment are those rights that government has never previously invaded, as opposed to things that were widely prohibited at the time the Ninth Amendment was adopted:
Read On...
True, a lack of government interference throughout history might be some evidence that a right is deeply rooted. But standing alone, it cannot be enough. If it were, it would be easy to employ such a premise to support sweeping claims of fundamental rights. For example, one might argue that, because Congress did not significantly regulate marijuana until 1937, relatively late in the constitutional day, see Gonzales v. Raich, 545 U.S. 1, 11 (2005), there must be a radition of protecting marijuana use. Because Congress did not regulate narcotics until 1866 when it heavily taxed opium, a drug created long before our Nation’s founding, see United States v. Moore, 486 F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J., dissenting), it must be that individuals have a right to acquire and use narcotics free from regulation. Or because speed limits are a recent innovation, we have a fundamental right to drive as fast as we deem fit. But this is most certainly not the law. A prior lack of regulation suggests that we must exercise care in evaluating the untested assertion of a constitutional right to be free from new regulation. But the lack of prior governmental regulation of an activity tells us little about whether the activity merits constitutional protection: "The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise." See United States v. Morton Salt Co., 338 U.S. 632, 647 (1950). Indeed, creating constitutional rights to be free from regulation based solely upon a prior lack of regulation would undermine much of the modern administrative state, which, like drug regulation, has increased in scope as changing conditions have warranted.
Slip op. at 22-23. I'd agree with the court that the mere absence of prior regulation is not by itself enough to create an unenumerated right, but I do think this particular point merited more thoughtful consideration than the Court gave it - the fact that an argument makes "much of the modern administrative state" unconstitutional may be reason to invoke stare decisis and avoid overturning such widespread and settled practices, but it is not a basis for saying that the argument is wrong. Experimental drugs didn't really exist in 1789 in the way we think of them today - but plenty of other things unregulated by the government at the time did, and a serious effort to make sense of the Ninth Amendment requires a better explanation of why it was not meant to restrict new and novel forms of government intrusion.
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DC Circuit: No Constitutional Right To Experimental Medicines 5 Comments (0 topical, 5 editorial, 0 hidden) Post a comment »
While the decision is indeed in keeping with legal trends, that is because legal trends have been going the wrong way for a long time -- ever since Reconstruction, as it happens.
The essence of the Bill of Rights is that we have rights unless we agree to yield them. The Ninth is the heart of that. The opposite course charted here is toward tyranny, and I oppose it.
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Gone 2500 years, still not PC.
the Constitution, or the modern administrative state & regulations, substantive law or the memo's of GS-11's buried in the bowels of an ugly building in Washington?
Forget the last half of that sentence if you will but roll the words around in your mind of the first half. Not even close!
Just where the puzzle, the conundrum? If judges are caught in dilemmas of conflicting goods, as listed above, the recourse, the last and deciding word must be the Constitution, the motive force to finality. Yes, and sometimes it's uncomfortable. But so is the idea of that fat assed, untouchable slug squatting like a toad in that government office.
Government by ukase is not government properly understood, it's rule by whim.
Even the type of problems usually cited, or cited above, offer valid distinctions, whether or not I would fully agree with them. Auto safety, the protection of life and property for example. But the case in question revolves around the issue of potentially saving a life with no interference or direct negative affect on the lives of others.
Here the 9th amendment, and you could add in the 10th, offer an answer to judges insufficiently concerned with "fundamental rights".
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
This is on course for tyranny. What is so hard to understand about fundamental rights?
It's pretty clear that the 9th amendment protecting unenumerated rights was a response to Hamilton's objectio to the entire idea of a Bill of Rights in Federalist 84:
"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power."
So, it does seem that on its face, the idea that Congress's legislative power is limited to those powers expressly granted in Article 1.
But then we enter into all kinds of problems using an 18th c. constution to govern a 21st c. nation. For instance, it provides the authority for a navy and armies, but not an air force.
I think Johnt properly recognize a real problem. However, I don't think the problem is really with the legislative branch, I think it lies with the bureaucracy and the executive branch. We have come to the point, I think, where the best we can expect from any legislative branch is obstruction.
Consider--what was the last significant piece of leglislation to originate in Congress? We really are governed, in Johnt's words, by "fat assed, untouchable slug squatting like a toad in that government office."
I think the court got it right 100% here. Fact is that experimental drugs are just that experimental. I would hope terminally ill patients could have another route to get these though.
I had to think about this one for a little bit because of "unenumerated rights". The more and more I think about it the sadder the situation seems, because what reason is "safety" to a terminally ill human. But there are regulations for a reason and it is to protect the entire population not just one or two people.