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 Left Understands RomneyCare

In defending his health care plan, former Massachusetts governor turned presidential candidate Mitt Romney never fails to call it a “free market” plan or to denounce “HillaryCare,” the presumed alternative. In the most recent Iowa debate, he proclaimed: “This is a country that can get all of our people insured with not a government takeover, without HillaryCare, without socialized medicine…. We [in Massachusetts] didn’t expand government programs.”

In reality, as my collegue Michael Cannon has pointed out, RomneyCare is virtually indistinguishable from HillaryCare. But don’t take our word for it.

Joe Conason of the New York Observer is the latest liberal advocate of national health care to note the similarities. As Conason says, “Actually, his fabulous Bay State plan is based entirely on governmental action, from mandating insurance coverage and minimum coverage requirements to subsidizing insurance and imposing fines on those who fail to comply.”

Romney has been trying to position himself as the “conservative” alternative to Rudy Giuliani and John McCain. But being a conservative Republican should be about more than abortion policy and the War on Terror. At the very least, supporting a government take over of one-seventh of the U.S. economy should disqualify one from being anything but the biggest of big-government conservatives.

Bureaucrats Run Up $13 Billion Travel Tab

Federal bureaucrats spend as much as $13 billion each year on travel, though that number is just a rough guess since the government is too incompetent to keep track of expenses. It also is no surprise to learn, as reported by the Federal Times, that the federal government has no ability to monitor how the money is being spent.

Gee, one would almost think that there is a lesson to be learned about the likelihood of waste when bureaucrats get to spend other people’s money:

The government knows what it spends on travel but not how. The General Services Administration estimates agencies spend $11 billion to $13 billion a year on business trips, but lacks the ability to say exactly where the money goes.

Follow the Moving Goalpost

Over on the Bloggingheads website, New Republic writer Michael Crowley asks pro-war pundit Eli Lake of the New York Sun to define “victory” in Iraq for us. Here’s Lake:

“avoiding a competitive, confessional genocide.”

Lake concedes mildly that this is a “fairly low standard.” (What would a really low standard be?) In that case, sounds like we won before we got in.

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?

Cohn Misrepresents the Effects of (and His Opposition to) a Standard Health Insurance Deduction

In a recent article for The New Republic, Jonathan Cohn uses old estimates about different proposal to mislead readers about the effects of a standard health insurance deduction:

A year ago, after Bush first floated an embryonic version of his proposal, economist Jason Furman wrote in the National Tax Journal that “Empirical estimates show that eliminating the tax incentive for employer-provided insurance, without creating another pooling arrangement, could increase the number of people without insurance–even in a relatively limited proposal like that of President Bush.”

The standard health insurance deduction is a pretty serious departure from the proposals that Furman criticized.  And there are more recent estimates of a standard deduction’s likely effect on the uninsured.  Cohn cites but one, which he qualifies:

Even the U.S. Department of the Treasury, which is part of the administration, strained to put an attractive gloss on this idea when Bush trotted it officially out this year. Its own evaluation, under favorable assumptions, suggested the proposal would reduce the number of uninsured by 3 to 5 million–meaning around 40 million people still wouldn’t have coverage.

Unfortunately, Cohn does not cite the Congressional Budget Office’s estimate that the standard deduction would reduce the number of uninsured by nearly seven million. 

It is fair for Cohn to question whether the Bush administration’s projections were just self-serving exaggerations.  But now that Peter Orszag’s CBO has torpedoed that suggestion – actually, the CBO issued its estimate a day before TNR posted Cohn’s article – why hasn’t TNR taken notice of Cohn’s misleading claim?

Cohn also misrepresents his opposition to a standard deduction.  He suggests that he opposes it because it wouldn’t cover all of the uninsured.  But if that were his reason, he also would have to oppose the House bill to reauthorize the State Children’s Health Insurance Program, which would cover only 5 million of the 9 million children that (Democrats claim) lack health insurance.  I think his real objection lies elsewhere. 

If Cohn wants to retain private health insurance at all, it is because he wants to take from some Americans to give to others, and laundering those subsidies through “insurance” markets helps to obscure such redistribution, as does letting employers control workers’ health care dollars.  A standard deduction would let workers control their health care dollars by eliminating the tax penalty that currently makes individual ownership impossible.  It would give workers the agility to avoid – and an incentive to block – politicians’ efforts to redistribute that portion of their income. 

Cohn opposes a standard deduction precisely because it would frustrate his desire to separate the American worker from her money.