cannabisnews.com: A Court Makes Up a Right A Court Makes Up a Right Posted by CN Staff on May 02, 2006 at 21:31:17 PT Editorial Source: Washington Post Washington, DC -- The U.S. Court of Appeals for the D.C. Circuit discovered a new constitutional right yesterday: "the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor's advice, even where that medication carries risks for the patient" and has not been approved by the Food and Drug Administration. If you don't remember reading those particular words in the founding charter, don't kick yourself. An ideologically eclectic panel of the normally sober D.C. Circuit pulled this "right" out of thin air. If the full court, or the Supreme Court, doesn't take another look, it could sow the seeds of all kinds of mischief.We're sympathetic to the plight of desperately ill people who may -- or may not -- be helped by experimental drugs that are just beyond their reach. Regulators and drug companies have taken some steps to address their need, and there may be more they can do to make unapproved therapies available to people ineligible to participate in clinical trials.But since when did access to experimental therapies become a "fundamental right" -- defined in Supreme Court case law as a right deeply embedded in the fabric of American tradition and without which ordered liberty would not be meaningfully free? To root this right in tradition, the majority opinion -- written by the relatively liberal Judge Judith W. Rogers for herself and conservative Chief Judge Douglas H. Ginsburg -- cites the age-old right of "personal security," along with the fact that "the government has not blocked access to new drugs throughout the greater part of our Nation's history" and the notion that "an individual has a . . . right to refuse life-sustaining medical treatment." The flip side of this principle, the majority argues, must be "the right to access potentially life-sustaining medication where there are no alternative government-approved treatment options."All of which, as newly appointed Judge Thomas B. Griffith argued in dissent, is a lot of hooey. The decision not to regulate an area over a long period of time does not create a right to be free of regulation in that area. As Judge Griffith wrote, "a tradition protecting individual freedom from life-saving, but forced, medical treatment does not evidence a constitutional tradition of providing affirmative access to a potentially harmful, and even fatal, commercial good." If this right is real, it potentially calls into question the whole fabric of drug regulation. Why do only terminally ill patients have it? Why doesn't an itchy eczema victim have a right to some new cream? Does the government have an obligation to fund the right for indigents who cannot afford access on their own? For that matter, why does the right only apply to drugs that have passed Phase I testing -- that is, preliminary safety trials? Why, in other words, doesn't the principle the court embraces create a right to LSD or marijuana, for which people have made all kinds of extraordinary medical claims?In creating the legal regime that governs drug approvals, Congress left the decision of when to permit drugs to go to market to the FDA. The FDA's balancing of the competing interests of patients, public health and science may not be perfect. But the cure does not reside in the Constitution.Note: The Founding Fathers and the FDASource: Washington Post (DC)Published: Wednesday, May 3, 2006; Page A22Copyright: 2006 Washington Post Contact: letterstoed washpost.comWebsite: http://www.washingtonpost.com/ CannabisNews Justice Archiveshttp://cannabisnews.com/news/list/justice.shtml Home Comment Email Register Recent Comments Help Comment #6 posted by Universer on May 04, 2006 at 15:00:15 PT: To All Excellent points, all. I hope we are copying-and-pasting, sending these well-written and well-thought points to such publications as Washington Post. The Post (et al) have no issue putting out pro-prohib points. If they are deluged with such pro-sense points as these, the likelihood of dispersal is increased.The choir needn't be preached to nearly as much as the ignorant. [ Post Comment ] Comment #5 posted by runderwo on May 03, 2006 at 21:29:31 PT hello Article: "If this right is real, it potentially calls into question the whole fabric of drug regulation."Um, yeah. Duh. Haven't we been saying that all along? No, the right does not preclude reasonable REGULATION, as the right to free speech does not preclude reasonable regulation on speech, but this right does forbid PROHIBITION.Article: "Why do only terminally ill patients have it? Why doesn't an itchy eczema victim have a right to some new cream?"Good question.Article: "For that matter, why does the right only apply to drugs that have passed Phase I testing -- that is, preliminary safety trials?"The right should exist for drugs where no harm has yet been shown in reasonable use. Why doesn't the FDA regulate aspirin?"If aspirin and other classic drugs had to go through the drug-approval process today, would they make it? After all, aspirin can cause gastrointestinal bleeding and under the right circumstances Tylenol is very harmful to your liver." - neolibertarian.netArticle: "Why, in other words, doesn't the principle the court embraces create a right to LSD or marijuana, for which people have made all kinds of extraordinary medical claims?"For all the extraordinary EFFICACY claims that LSD and marijuana proponents have made, I would say that there are at least an equal amount of extraordinary SAFETY claims by the pharmaceutical industry and FDA."Does the government have an obligation to fund the right for indigents who cannot afford access on their own?"NO. But nice red herring, attempting to tie this into universal health care. This isn't about a right to SURVIVAL, it's about a right to SELF-DETERMINATION and the right to SEEK SURVIVAL within one's means to do so. [ Post Comment ] Comment #4 posted by dongenero on May 03, 2006 at 08:24:38 PT medical freedom - founding fathers wisdom "Unless we put medical freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship to restrict the art of healing to one class of men and deny equal privileges to others: The Constitution of this Republic should make a special privilege for medical freedom as well as religious freedom."Dr. Benjamin Rush, signer of the Declaration of Independence [ Post Comment ] Comment #3 posted by Dankhank on May 03, 2006 at 08:20:46 PT D C medical cannabis Two votes in recent years for medical cannabis ...congress, led by Bob Barr, cut off money to count the first vote ...Congress opposes medical marijuana simply by wanting it gone, in spite of the votes ...http://tinyurl.com/oeut9Isn't this Sun Young moon's newsrag? [ Post Comment ] Comment #2 posted by BGreen on May 02, 2006 at 23:59:26 PT How is the FDA constitutionally legal? All of a sudden, after over a hundred years of freedom of choice in medical treatment, that FUNDAMENTAL RIGHT (you die without proper medical care, so LIFE is a very important part of LIBERTY and FREEDOM) was snatched away from the citizens and put in the hands of the corporate money that controls the government.It seems to me that it's the government and it's shill sub-groups such as the FDA and DEA that actually deprives us of our life, liberty AND the pursuit of happiness. Then again, the one thing that IS written but exclusively ignored is our "pursuit of happiness."The Reverend Bud Green [ Post Comment ] Comment #1 posted by laduncon on May 02, 2006 at 23:38:09 PT A little thing called the Bill of Rights Bill of Rights: Amendment 9: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage the others retained by the people." Amendment 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."On the flipside, could this guy please point out where the FDA derives its legitimacy from the Constitution? Good luck. [ Post Comment ] Post Comment