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Response or Comment

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Do terminally ill patients have a constitutional right "to decide, without FDA interference, whether to assume the risks of using potentially life-saving investigational drugs that the FDA has yet to approve for commercial marketing, but that the FDA has determined, after Phase I clinical human trials, are safe enough for further testing"? In Abigail Alliance for Better Access to Developmental Drugs v. McClellan, the United States District Court for the District of Columbia said "no." In Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, a panel (three judges) of the United States Court of Appeals for the District of Columbia Circuit said "yes" (with one dissent). But when the full appeals court reconsidered the panel's decision, it said "no" (with two dissents). Where in the Constitution might such a right be found? If anywhere, in the fifth amendment's due process clause: "No person shall be ... deprived of life, liberty, or property, without due process of law." This clause might seem only to impose procedural limits on how the government may take your life, liberty, or property. Nevertheless, twice in American history the Supreme Court has believed that the clause imposes substantive as well as procedural limits that the clause limits what government may do as well as how it may do it.


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.