Abigail Burroughs, seen here before cancer ravaged her body, died at age 21 after pleading unsuccessfully to use a promising drug called Erbitux, then in final clinical trials but not yet approved by the FDA. Months after Abigail's death, the FDA granted approval amid geysers of self-laudatory praise for making the "life-saving" drug available. Rather than tracking down and beating the tax-fattened bureaucrats who helped kill his daughter -- as he was morally entitled to do -- Abigail's father Frank created the Abigail Alliance for Better Access to Developmental Drugs.
It's not that often that we can say with perfect confidence that a judicial ruling will lead directly to the needless agonizing deaths of innocent people. The U.S. Court of Appeals for Washington, D.C. handed down just such a ruling (.pdf) in a case brought against the FDA by the Abigail Alliance for Better Access to Developmental Drugs.
Bobbing in the porridge of intellectual perversity served by the court is this particularly unpalatable morsel: "[C]reating constitutional rights to be free from regulation based solely upon a prior lack of regulation would undermine much of the modern administrative state, which, like drug regulation, has increased in scope as changing conditions have warranted."
From this single observation we can extract the logic (if that word can be tortured into applying here) of the entire ruling:
*Constitutional rights are a government artifact, "created" primarily by the courts.
*Since "rights" are creations of the State, they can be summoned into existence, summarily abolished, or modified as the government sees fit, in order to serve the State's "compelling interests."
*The fact that certain freedoms have been historically exercised by Americans -- such as the right to seek alternative treatments for life-threatening conditions, a right exercised by Americans without qualification for most of our nation's history (from the colonial period until 1962) -- is of no consequence when the State decides to expand its own regulatory mandate.
*If, in defiance of the foregoing assumptions, terminally ill patients are permitted to exercise ownership over their health by seeking treatments not approved by government, then the entire rationale for the "administrative" State will be fatally undermined. It is better that we let a few innocent people die in agony, than to permit the State's regulatory powers to be undermined in any way.
Not surprisingly, the court tried to buttress this argument by invoking that all-purpose exterminator of liberties, the "War on Drugs."
If there is a "deeply rooted" right to experimental drugs and other treatment, the court sneers, shouldn't there likewise be a "deeply rooted" right to use marijuana and other narcotics, which weren't subject to federal regulation until 1937?
Well, now that you mention it, the constitutional case for regulating drugs of any kind is thin enough to make Keira Knightley look zaftig by comparison. Operating on such a slender pretext, the State has grown obese and murderous. And the war on narcotics, predictably, has expanded into a war on non-sanctioned medical treatment.
For the DC Appeals Court, the default setting is "paternalistic authoritarianism," which is why sees nothing amiss in decanting lines such as this:
"A prior lack of regulation suggests that we must exercise care in evaluating the untested assertions of a constitutional right to be free from new regulation."
The only way this can make sense if one assumes -- contrary to the text and history of the Constitution (particularly the Ninth Amendment), the commentaries of those who drafted it, the recorded debates of those who ratified it, and the common sense invested in each of us by our Creator -- that individual rights, rather than grants of government power, must be specifically enumerated.
In that mental universe, it is freedom, rather than power, that must be justified. This includes the liberty of peaceful, law-abiding people who suffer terminal illnesses, acting with full knowledge of the risks, to make use of promising experimental drugs that haven't yet earned the unqualified approval of the regulatory bureaucracy.
The court complains that, in essence, "the Alliance insists on a constitutional right to assume any level of risk." Well, why the hell not? If someone confronts the prospect of a lingering, painful death from a terminal disease, doesn't that person have the right to take any risk he deems appropriate in seeking to defeat the disease?
According to the court, the answer is "no" -- because it is the State, acting through the legislature and the regulatory apparatus, that makes "value judgments" of this sort, and the suffering individual has no "constitutional right to override the collective judgment of the scientific and medical communities expressed through the FDA's clinical testing process."
The candor with which the court emits such collectivist nostrums is amazing. And undergirding them is the tacit but unmistakable understanding that from the court's perspective, the State owns each of us, and as slaves, we must defer to the State's power to do as it sees fit -- no matter what needless cruelty results.
In a dissent that is as intellectually taut as the majority opinion is flaccid, Judge Judith Rogers italicizes the obvious -- namely, that the "right of a person to save [his] own life," which was entirely ignored in the decision, is the fundamental human liberty. An illustration of the court's alienation from reality is found in the fact that Rogers considered it necessary to fortify this "Well, duh" proposition by supplying quotes from Blackstone and Samuel Adams on the subject.
It is because of the centrality of this right that "the Alliance's liberty claims are not grounded in the abstract notion of personal autonomy, but rather in the specific right to act to save one's life," Rogers observes. "While the potential cures [that haven't completed FDA testing] may not prove sufficient to save the life of a terminally ill patient, they are surely necessary if there is to be any possibility" of doing so, she contends.
The basic defense of the institution of government is that it is necessary to protect the life and liberties of the individual. Yet in this case, the State is found "interposing itself between a terminally ill patient and [that patient's] only means of prolonging [his] life," a practice that "runs counter to the common law's historical prohibition on interfering with rescue."
Interposition, in the Common Law tradition, was a practice intended to protect the innocent from the lawless violence of others -- not to forbid the innocent to take action to save themselves.
Rogers' dissent is already justly famous for its meditation on the lethal irony of contemporary judicial doctrine regarding "rights":
"In the end, it is startling that the oft-limited rights to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one's own body even if it results in one's own death or the death of a fetus have all been deemed fundamental rights ... but the right to try to save one's life is left out in the cold despite its textual anchor in the right to life."
The problem here is one not properly perceived by either party in this case, or by either faction on the court: The 1973 Roe v. Wade decision effectively nullified the right to life, not just for human individuals within the womb, but for any class of people who can be written off as non-"viable." Roe did not specify that human "personhood" begins at birth; it simply said that it doesn't occur anytime prior to birth:
"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
In 1982, the lethal logic of Roe was used to justify the eugenic murder of "Baby Doe," an infant born with Down's Syndrome and a defect of the esophagus who was allowed to starve to death rather than undergo rudimentary surgery that would have saved his life. The assumption was that the newborn -- who was unambiguously a human person -- was not "viable" because he would suffer from severe retardation unless he was murdered.
A similar approach was taken in the case of Baby Jane Doe, a New York infant born with spina bifida whose parents declined to seek relatively simple surgery to close the spinal lacuna -- and then set about the task of killing the girl by degrees through calculated, and State-authorized, lethal neglect. The girl's spinal column later healed itself, prompting the parents to seek appropriate medical treatment. But in those cases, a clear precedent was established expanding Roe's license to kill to include vulnerable people who are fully born.
Given this history, it beggars comprehension that the Abigail Alliance's legal strategy in seeking to vindicate the right to life was based on a novel reading of Roe and its (if you'll excuse the expression) offspring: The intention was to demonstrate that (in Judge Rogers' words) the Supreme Court "has developed a sizable body of law regarding the right to a potentially life-saving medical procedure" -- that is, "therapeutic" abortion -- "when the life or health of a pregnant woman is on the line."
Trying to extract a life-affirming line of reasoning from Roe is like seeking to obtain grapes from thorns, figs from thistles, or wisdom from Sean Hannity. It simply cannot happen,because everything reproduces after its kind, and Roe was the grand ancestor of every contemporary manifestation of the Culture of Death, including the capricious denial of medicine to desperate, terminally ill people.
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