Topic: Political Philosophy

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.

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?

No Right to Life?

Open the newspaper, turn on the television, or surf the net, and you’ll find people saying the government can solve our problems and make life better.  This is the happy face of government:

Behind the happy face is an institution that is willing to strip of us of our right to self-defense, and, worse, deprive dying patients of life-saving drugs.   Who do these politicians and bureaucrats think they are?

For more on the right to life, go here, here, and here (pdf).

New at Cato Unbound: Peter Leeson on Practical Anarchy

Everybody seems to know we need government … But pirates didn’t! How did they manage without the state? In this month’s thought-provoking Cato Unbound lead essay, Peter T. Leeson, the BB&T Professor for the Study of Capitalism at George Mason University, explores what pirate “constitutions,” credit institutions among 19th century African bandit traders, and the well-being of Somalians after the collapse of the Somalian state have to tell us about the possibility of practical anarchy. It works better than you think, Leeson concludes. “As long as there are unrealized gains to realize, people will find ways to realize them” — state or no state.

Can organizations really solve complex problems of coordination without government coercion? Can voluntary bands provide public goods? Are there conditions under which groups are better off stateless? Leeson will be joined in tackling these question by three eminent commentators: Florida State economics professor Bruce Benson, author of the seminal The Enterprise of the Law: Justice without the State; Dani Rodrik, professor of international political economy at Harvard’s Kennedy School of Government; and Randall Holcombe, another distinguished Seminole economist and current president of the Public Choice Society. Benson is on deck to reply this Wednesday. Stay tuned!  

Update on the Anti-Universal Coverage Club

Joining the Anti-Universal Coverage Club this week is a list of organizations that have formed a new group called The Health Care Freedom Coalition.  Here are a few lines from their agenda:

Most Democratic presidential candidates, one Republican presidential candidate, many business trade associations, and unions have endorsed “universal health insurance” as the solution to our nation’s health care problems.

With 46 million Americans who don’t have health insurance, these politicians and special interest groups have concluded that covering everyone will magically make health care affordable.

“Universal health insurance” is a myth. The only way to make health care “affordable” under a “universal health insurance” scheme is through price controls and limiting access. Any proposal claiming to provide “universal coverage” is nothing more than a system that must rely on private and/or public entities to administer government-run health care. 

Emphasis added.  The Health Care Freedom Coalition includes:

  • 60 Plus
  • Alabama Policy Institute
  • American Conservative Union
  • American Shareholders Association
  • Americans for Prosperity and AFP Foundation
  • Americans for Tax Reform
  • Center for Freedom and Prosperity
  • Christus Medicus Foundation
  • Commonwealth Foundation for Public Policy Alternatives
  • Consumers for Health Care Choices
  • Council for Affordable Health Insurance
  • Fairness Foundation
  • FreedomWorks
  • Grassroot Institute of Hawaii
  • Illinois Policy Institute
  • Indiana Family Institute
  • Medical Savings Insurance Company
  • Mississippi Center for Public Policy
  • National Center for Policy Analysis
  • National Taxpayers Union
  • Pacific Research Institute
  • Public Interest Institute
  • Rio Grande Foundation
  • Small Business Entrepreneurship Council
  • The James Madison Institute
  • Washington Policy Institute

Not joining the Anti-Universal Coverage Club this week are the U.S. Senate and House of Representatives, which approved legislation to expand government health insurance to people who don’t need government assistance, and the Galen Institute’s Grace-Marie Turner, who reiterated in her weekly newsletter:

The question isn’t whether children should or should not have health insurance. The question is how do we achieve that goal.

Illegal Manicure in the ‘Live Free or Die’ State

In response to to my post about a (possibly) illegal hairdresser in Massachusetts, Michael Hampton of Homeland Stupidity forwards a link to a priceless local New Hampshire news report. (It’s two years old, but it’s new to me and to this blog.)

Free State Project member Mike Fisher performed an illegal manicure right in front of the “Live Free or Die” state’s Board of Barbering, Cosmetology and Esthetics. (Motto: Yew Best Drop That Thar Em’ry Board, Son.)

When the police asked Fisher if he had a license to perform that thar manicure, Fisher said no. When the police issued him a summons and asked that he stop performing that thar manicure, Fisher refused. So the cops slapped handcuffs on this dangerous outlaw and put him in a squad car. Fisher reportedly received a 30-day suspended sentence, with a vow from the judge that if Fisher receives so much as a traffic ticket, it’s off to the pokey he goes.

I wonder what the Granite State wasn’t doing with the time and resources used to arrest and prosecute Fisher.