Right to Take Drugs

Very interesting. The D.C. Circuit has established a new fundamental right for us. Thanks, guys. A split panel, led by Judge Douglas Ginsburg (our favorite "Constitution in Exile," libertarian-jurist), asserted that we have a Constitutionally protectected right as follows:

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.

Ok? So the FDA can no longer deny a patient's ability to receive certain drugs, under a doctor's supervision, that are still deemed experimental and thus not suitable for market. Well, it's about time. I view FDA as monopolist-enablers, literally in the pocket of BIG-Pharma (drug companies pay the operation costs of FDA through application fees). To be sure, I like the outcome of this case - but, still, no matter you slice it, constitutional rights rooted in "substantive due process" always tend to create a sick feeling in my stomach. Think "right" to unemployment benefits... Due process means "process," people. While I realize that this opinion was probably tailored to withstand review by the SCOTUS, part of me wishes that Ginsburg et. al. would simply cite the Privileges and Immunities Clause just once, for good measure, and allow the rest of us academic-obssessive-geeks to see how the old robes feel about Slaughterhouse nowadays. And, yes, I do turn my head towards traffic accidents.