Ok, I’m trying to find new topics to blog about, but I can’t seem to pull myself away from this recent court decision. Roger Pilon, of the Cato Institute, has written an op-ed in the Wall Street Journal today that I highly recommend for anyone trying to understand the legal background for where such decisions come from. To briefly sumarize some of his main points, he says that the dissenting judges see the right to life (and preservation) as fundamental, hence:
“The burden is on the FDA to show why its interference is justified — to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.”
While the majority sees the issue differently – rather than a fundamental right to life, they focus on is “the right to access experimental and unproven drugs.” It may not seem like much of a distinction, but according to Pilon it is the difference between a right that existed prior to the FDA, and a ‘right’ that existed once the FDA was established. I’m going to be honest and say that much of this legal stuff is over my head, but what he says makes sense, in that this changes the burden of proof. Says Pilon:
No longer would the government need to justify its restrictions; the dying would have to try to overcome those restrictions. But that would be impossible because now the court would no longer strictly scrutinize the government’s rationale. Rather, it would apply a “rational basis” test under which the government would win as long as it had any reason for restricting access. Deference so complete, the dissent noted, amounts to nothing less than “judicial abdication.”
He writes much more, including how the courts have changed, and why it was possible for the majority decision to include both liberal and conservative judges, despite their different approaches to constitutional law.
Additionally – I found this op-ed via the Cato blog, where health policy scholar Michael Cannon announced that they are holding a policy forum on September 25 that includes the Abigail Alliance (Scott Ballenger – lead counsel for the Alliance, Ezekiel Emanuel – chair of Bioethics at the NIH, and Cannon). Given my recent obcession with this topic, it sounds like something I should attend.
Edit – doh! Forgot that the WSJ requires a subscription. If you don’t have a subscription, you can access Pilon’s article for free here.