Topic: Law and Civil Liberties

What Price (Restricted) Freedom?

About six months ago, I did an elegant back-of-envelope calculation about the Western Hemisphere Travel Restriction Initiative’s cost in terms of lost freedom and commerce. I came up with an estimate of about half a billion dollars (net present value).

If that estimate was a little too airy, here’s a clearer cost of WHTI: $944 million over three years. That’s the direct cost we’re paying through the State Department for the WHTI rules.

So now we’re at around $1.5 billion. Will $1.5 billion+ in damage to the United States’ people, possessions, infrastructure, and interests be averted thanks to WHTI? No. As a security measure, it’s Swiss cheese.

WHTI does more harm than good. It is a self-injurious misstep - precisely what the strategy of terrorism seeks to cause.

The Food and Drug Administration’s Deadly Policies

A devastating column in the Wall Street Journal calculates the death toll caused in part by the bureaucrats at the FDA. The paper-pushers refuse to let critically ill patients have access to experimental new drugs – even when those drugs already have cleared some clinical tests. In a free and just society, individuals would have the right to make those decisions:

The Alliance began pushing for access to investigational drugs for terminal patients after its founding in mid-2001 upon the death of Abigail Burroughs, who was denied an investigational drug (Erbitux) that an early trial showed might have helped her. She and her doctor were right, but she never got the drug. Over the past five years, the Alliance has pushed for access to 12 exceptionally promising investigational cancer drugs which have subsequently been approved by the FDA and now represent standard care. At the time we began our advocacy, each of the drugs had cleared at least preliminary Phase 1 testing, and in some cases more-advanced Phase 2 or Phase 3 trials. In other words, they obviously worked for some patients. …

In sum, these 12 drugs – had they been available to people denied entry to clinical trials – might have helped more than one million mothers, fathers, sons and daughters live longer, better lives. We have actually underestimated the number of “life-years” lost at more than 520,000, because we have not included other safe and effective uses of these drugs that the FDA has yet to approve. …

The American Cancer Society reports that some 550,000 cancer patients die annually, making the number of cancer deaths from 1997 to 2005 about 4.8 million. Over that same period, the FDA reports granting individual access to an investigational drug to not more than 650 people per year for all diseases and drugs – a pathetic, even cruel, pittance. A few thousand more patients managed to gain access by enrolling in relatively small clinical trials or exceedingly rare expanded access programs. The other 4.7 plus million cancer patients, not to mention millions more with other diseases, were abandoned to die, denied access to progress by their own FDA when they needed it most.

Equal Justice?

Mary Winkler is out of jail. She served 67 days after her conviction for shooting her husband in the back as he lay in bed and killing him. Now she’ll go back to work at the dry cleaners in McMinnville, Tennessee, and seek to regain custody of her children.

Meanwhile, Will Foster was sentenced to 93 years for using marijuana to relieve the pain of his acute rheumatoid arthritis. An appeals court reduced the sentence to 20 years, and Gov. Frank Keating made him serve more than four years before granting him parole.

A few miles from Mary Winkler in Tennessee, 57-year-old Bernie Ellis has been confined for the past 18 months to a halfway house. His crime? Growing marijuana to treat a degenerative condition in his hips and spine. A public health epidemiologist specializing in substance abuse, he also provided pot to some other sick people.  10 officers of the Tennessee Marijuana Eradication Task Force swooped in to put a stop to that, and to try to seize his farm as well.

In a more just world, Tennessee would set up a Murder Eradication Task Force, leave Bernie Ellis alone, and give Mary Winkler a tad more than 67 days for shooting her husband to death.

A Snub for the Dying

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit ruled 8-2 that terminally ill patients who have exhausted all available treatments have no constitutionally protected right to access experimental treatments not yet approved by the federal Food and Drug Administration.  A panel of the D.C. Circuit previously had ruled 2–1 in favor of the terminally ill patients who brought the case, Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach

The Abigail Alliance is named for Abigail Burroughs, who died of head and neck cancer in 2001 after failed attempts to access Erbitux (cetuximab) through the FDA’s existing channels.  (In 2006, the FDA approved Erbitux for treatment of head and neck cancer.)  The Abigail Alliance now represents similarly situated, terminally ill patients who only want one last shot at life.  Eschenbach is commissioner of the FDA.

In an op-ed [$] in today’s Wall Street Journal, my colleague Roger Pilon discusses the tortured legal reasoning that led to the perverse conclusion that terminally ill patients do not have a fundamental right to save their own lives. 

The scientific and economic argument supporting the FDA’s case is that we would get far less information about drug safety and efficacy if terminally ill patients could access unapproved drugs, because there would then be no incentive for patients to participate in the clinical trials that generate such information.  There are a number of problems with this argument, the greatest being that it reduces Abigail Burroughs to a cog in some bureaucrat’s grand machine.

On September 25 from noon to 2pm, the Cato Institute will host a forum on Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach.  Speakers will include Scott Ballenger, lead counsel for the Abigail Alliance; Ezekiel Emanuel, chair of the Department of Bioethics at the National Institutes of Health; and yours truly.  Keep watching Cato@Liberty or the Cato website for further details.

This week’s ruling brought to mind a quote from Mark Twain that appeared in the New York Times on February 28, 1901, and that Mike Tanner and I included in our book Healthy Competition:

The State stands a Gibraltar between me and anybody who insists upon prescribing for my soul what I don’t want to take… . Why shouldn’t I have equal liberty with regard to my body, which is of so much less concern? … Now what I contend is that my body is my own, at least I have always so regarded it. If I do harm through my experimenting with it, it is I who suffer, not the State.

The Roberts Court

Doug Bandow has a terrific article about the Roberts Court and judicial philosophy over at the American Spectator.  Excerpt:

Washington is rife with awful arguments, shameless demagoguery, and flagrant hypocrisy, of course. But Smith’s concern lest “a majority of Supreme Court justices adopt a manifestly ideological agenda” and plunge “the court into the vortex of American politics” is almost too hilarious to repeat. Apparently the Warren and Burger Courts were merely following popular values when they overturned decades and even centuries of precedent to transform sizable areas of constitutional law. When they turned the law into a matter of judicial preference rather than constitutional interpretation, they presumably did so in a nonideological and nonpolitical fashion. …

Judicial philosophy obviously matters. Here the right long has gotten the argument much more correct than the left. Conservatives can and do argue about exactly what “original intent” should constitute – I believe that constitutional and legislative provisions must be understood in terms of the political compromises from which they sprang. What did the voters and ratifiers as well as drafters believe to be true? That may not always be easily discoverable, of course. Nevertheless, constitutional (and legal) understandings must be rooted in what the provisions meant when enacted. Otherwise there is little to prevent courts from becoming mini-legislatures, enacting their preferences through shameless sophistry disguised as judicial opinions.

Learned liberal treatises on jurisprudence abound, justifying judicial activism on behalf of any number of ends. But all of these arguments lead to the same basic result: a much-expanded state built on the tenets of modern liberalism. Once the official meaning of law is cut loose from what its specific provisions were originally expected to mean, the only restraint on judges is their personal temperament. If the Constitution means what judges say it does, it means nothing at all. A court that can eviscerate the property takings clause, for instance, can eviscerate the First Amendment guarantees for free speech and religious liberty, and the Fourth Amendment’s bar on unreasonable searches and seizures.

Although unbridled judicial activism is an unsatisfactory jurisprudential principle, the left has nowhere else to go because the Constitution is fundamentally, though not purely, a libertarian-conservative document. The nation’s basic law is meant to constrain politics, to put many issues, centered around an expansive and expensive national government, out of bounds of the democratic process. In short, to be a liberal and believe in original intent is to be eternally frustrated.

Read the whole thing.

I Got Hooked on the White Stuff Back in the ’70s

disco-stu.bmpNo, not that white stuff. And not the white stuff that Disco Stu bought from Garth Motherloving. The white stuff I got hooked on (growing up on the family dairy farm) is raw milk — milk that has not been pasteurized or homogenized. Today’s NYT has an article on the growing black and gray markets in raw milk, which the Food and Drug Administration and 15 state legislatures want to shut down.

Yes, that’s right — Uncle Sam and 15 state governments prohibit consumers from buying milk fresh from the cow. And in the nannies’ defense, milk was responsible for much food-borne illness in the era before universal pasteurization. Most consumers likely prefer protection from nasty bugs like E. coli and salmonella.

But others are willing to risk exposure to those illnesses. Some raw milk enthusiasts claim the white stuff is more healthful than processed milk. Others (I count myself among these) say simply that it tastes better that the milk you buy at the store — people who try raw milk for the first time often comment that it tastes more like melted ice cream than the stuff that comes in cartons.

So why should raw milk fans be prohibited from buying the product they want?

That question also underlies Tim’s post, yesterday, about another FDA prohibition — keeping terminally ill patients from accessing experimental medicines. There is no public health issue with these products (my drinking raw milk might make me sick, but it’s not going to make sick the people I interact with on the street). And there is no fraud and abuse issue — these consumers know that they’re buying raw milk; indeed, they want raw milk. Consumers of raw milk (or experimental drugs to fight their cancers or HIV) realize that there is risk to these products but, given their medical conditions and their preferences, they’re willing to bear that risk in exchange for the products’ (possible) benefits.

Government prohibition of the sale of these products is nothing more than bureaucracy’s blanket imposition of its own risk preference on a large, heterogenous population that includes many people with differing preferences. One of the chief virtues of a free market is that it does a far better job of satisfying the heterogenous preferences of a population of consumers than a central planner ever could. Unfortunately, government often intervenes in markets and diminishes that virtue.

As Tim writes in his post, the FDA and its state-level imitators put a happy face on that intervention, claiming they are looking out for the public’s health. But in these cases, why aren’t members of the public permitted to look out after their own health?

A Tragic Legacy

Bestselling author Glenn Greenwald spoke here at Cato on Tuesday on his latest book, A Tragic Legacy: How a Good vs.  Evil Mentality Destroyed the Bush Presidency.  There was a sharp, but civil, exchange with guest commentator, Lee Casey, who has published many articles in defense of Bush administration policies.  C-SPAN was here to tape the event and it will be airing soon.  Of course, all Cato events are archived on the website, so you can watch or listen to this event at your convenience.  For a sneak preview, check out today’s podcast interview with Greenwald.

Greenwald’s blog posts can be found over at Salon.  For related Cato work on the legacy of the Bush administration, read this and this.