All I Need is a Miracle and a Constitutional Right to Access It: The Rights of the Terminally Ill ReconsideredExpressO (2010)
AbstractIn Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, Abigail Alliance sought to enjoin the FDA from preventing the sale of investigational drugs to terminally ill patients. The Alliance argued that terminally ill patients have a constitutional right to access investigational drugs under the Due Process Clause of Fifth Amendment. In order to determine if a right to non-FDA approved drugs existed under the Due Process Clause, the court applied the test laid out in Washington v. Glucksberg. An en banc panel of the D.C. Circuit Court of Appeals held that terminally ill patients did not have a constitutional right to access non-FDA approved drugs. This Note argues that the D.C. Circuit Court of Appeals correctly applied the Glucksberg test, but failed to consider how recent scientific discovery and changing societal views impact a Glucksberg analysis. With evolving technologies, the evidence of a “deeply rooted tradition” must be examined in terms of recent history, as the regulatory structure which defines the right at issue in this case did not exist until 1906. This Note asserts that the Glucksberg framework is not a viable analysis for emergent medical technologies, and that a more viable framework would be the framework used in Lawrence v. Texas, which emphasizes recent history and the evolution of society’s views towards a given topic.
Publication DateJanuary 14, 2010
Citation InformationAmy M. Dudash, All I Need is a Miracle and a Constitutional Right to Access It: The Rights of the Terminally Ill Reconsidered, Michigan State J. of Law & Medicine, forthcoming 2010.