Economists File Brief In Support of Terminally-Ill

On November 21, 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 terminally-ill people from obtaining access to potentially life-saving doctor-recommended drugs that have passed the first stage of the FDA’s lengthy approval process.

Ted Frank of AEI, working with the O’Melveny & Myers law firm, has filed a well-written amicus brief on behalf of several eminent economists arguing in support of the D.C. Circuit’s original decision in favor of the terminally ill.

The brief explains why allowing the terminally-ill greater access to such drugs will not only save the lives of terminally-ill people, but also will not erode drug and medical safety for the public at large.

The D.C. Circuit should reaffirm its original decision in favor of the terminally-ill. It is hard to understand how the courts, which currently require regulators to defer to individual doctors about the need for other medical procedures, like abortion (the Supreme Court ruled in Stenberg v. Carhart that particular methods of abortion, such as partial-birth abortion, cannot be prohibited, as long as a respectable minority of physicians believe that the method is useful for preserving the mother’s health), could fail to require regulators (like the FDA) to defer to doctors about the need for potentially life-saving medical treatments, even when the doctor’s recommendation is supported by a respectable body of medical opinion.

Why should a patient’s right to receive life-saving medical treatment receive less constitutional protection than her right to choose a particular abortion method that marginally improves her emotional health?

The Constitution’s text, after all, expressly mentions a right to “life,” liberty, and property. It doesn’t expressly mention a right to an abortion, although such a right was read into the Constitution in Roe v. Wade.