Yesterday, the D.C. Circuit Court of Appeals voted to vacate and rehear its Abigail Alliance v. Von Eschenbach decision, which would have required the FDA to justify why it prevents gravely ill people who would otherwise die from obtaining access to drugs that have passed the first stage of the FDA’s lengthy approval process. Decisions are usually reversed when they are reheard by the full court.
Apparently, the specter of terminally ill people being able to access experimental drugs that might save their lives was just too scary for many of the D.C. Circuit judges.
Perhaps they agreed with the specious arguments of the Washington Post, which editorialized against the D.C. Circuit’s original decision in favor of the terminally ill by using the straw-man argument that no one has an affirmative right of access to medical treatment.
But the patients have never sought a dime of taxpayers’ money, much less affirmative assistance from the government. All they seek is the right to obtain treatment, at their own expense, from willing private medical providers.
But in a feat of Orwellian word play, the Washington Post redefined affirmative access as meaning not being blocked by government interference from obtaining treatment from a willing provider. Under the Post’s perverse definition, seeking private medical treatment automatically qualifies as a demand for affirmative access from the government, if government red tape would otherwise prevent such treatment.
An unstated premise of the Post’s editorial is that that a patient’s right to live (a right expressly mentioned in the Constitution) should receive less judicial protection against regulation than the right to a partial-birth abortion (which is not mentioned in the Constitution, but which the Post has repeatedly advocated). That is a very bizarre premise.