The wheels of justice turn slowly, especially for the dying. On Tuesday the D.C. Circuit, sitting en banc, reversed a 15‐month‐old decision by a panel of the court that had recognized a constitutional right of terminally ill patients to access potentially life‐saving drugs not yet finally approved by the Food and Drug Administration. Given the poor quality of Tuesday’s opinion in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach — “startling,” said the dissent — one wonders why it took so long. The opinion’s one virtue is that it brings out clearly how far modern “constitutional law” has strayed from the Constitution, a document written to protect liberty, not federal regulatory schemes.
Represented by the Washington Legal Foundation, Abigail Alliance is named for Abigail Burroughs, a 21‐year‐old college student who died of cancer in 2001. Their argument could not be more simple or straightforward, nor could Tuesday’s dissent, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg, the majority in the earlier opinion. Citing the Fifth Amendment’s right to life, the Ninth Amendment’s assurance to the Constitution’s ratifiers that the rights retained by the people far exceed those named in the document, and the Supreme Court’s “fundamental rights” jurisprudence, Judge Rogers argued that the right to life, the right to self‐preservation, and the right against interference with those rights — which the FDA is guilty of — are of one piece. They are deeply rooted in common law and the nation’s history and traditions, implicit in the concept of ordered liberty, and thus “fundamental.”
Indeed, it is startling, she noted, that the 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 have all been deemed fundamental, 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.” Because the rights at issue here are “fundamental,” she concluded, the court must apply, in judicial parlance, “strict scrutiny.” The burden is on the FDA to show why its interference is justified — to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.
There, precisely, is where Tuesday’s majority demurred. In a long footnote, Judge Thomas Griffith, who had dissented in the earlier opinion but wrote now for the majority, recast the right at issue as “the right to access experimental and unproven drugs in an attempt to save one’s life.” Through such “tragic wordplay,” as the dissent put it, the right ceases to be “fundamental,” under Supreme Court precedents, because it is “not deeply rooted in the Nation’s history and traditions.”
So described, the right is not “deeply rooted,” of course, because the very idea of “experimental and unproven drugs” implies a regulatory regime like the FDA, and that is a recent development. Yet as the dissent detailed, for most of our history individuals were free to take whatever drugs they wanted without a doctor’s prescription. It was only in 1951 that Congress created a category of prescription drugs. Then in 1962 it began requiring drug companies to conduct extensive tests to ensure drug “efficacy,” which led to long delays for drug approval and to the deaths of countless patients who would gladly have borne the unknown risks for a chance at life.
As a legal matter, what Judge Griffith achieved with his linguistic legerdemain was a shift in the burden of proof: No longer would the government need to justify its restrictions; the dying would have to try to overcome those restrictions. But that would be impossible because now the court would no longer strictly scrutinize the government’s rationale. Rather, it would apply a “rational basis” test under which the government would win as long as it had any reason for restricting access. Deference so complete, the dissent noted, amounts to nothing less than “judicial abdication.”
Plainly, the issues here go well beyond this case, which is doubtless why the court decided to rehear it en banc. And they go beyond liberal and conservative as well, as the mixed seven who joined Judge Griffith’s opinion should indicate. What we have here, arguably, is a revolt of sorts by Judge Rogers and Chief Judge Ginsburg against what passes today for “constitutional law.” Reducing that revolt to a simple question: Under a Constitution that expressly protects the right to life, how did we get to where government can effectively restrict the right, and the courts will do nothing?
The answer for liberal jurists is simple. Since the Progressive Era they’ve worked assiduously to create the modern redistributive and regulatory state, constitutional impediments notwithstanding. Following Franklin Roosevelt’s infamous 1937 threat to pack the Supreme Court with six new members, the Court facilitated that agenda by distinguishing “fundamental” and “nonfundamental” rights, protected by “strict scrutiny” and “rational basis scrutiny” respectively. That invention opened the floodgates to ever‐expanding legislative schemes. But liberals didn’t always win in the legislatures, so they turned increasingly to the courts, urging judges to find “fundamental” rights by consulting “evolving social values.”
That led to a conservative backlash and a call for “judicial restraint,” especially after the Court found a fundamental “right” to abortion in 1973. Both sides, therefore, have reasons to urge judicial restraint and deference to the administrative state. Modern liberals don’t want judges interfering with the legislative creation of the welfare state’s social and economic rights. Conservatives hope to frustrate those legislative efforts while forestalling the judicial creation of such rights. Thus, they urge judges to protect only those rights found expressly in the Constitution — and will describe rights, as here, to avoid even the hint of judicial activism.
In a word, then, liberal jurists could rule against Abigail Alliance to ensure the dominance of the regulatory regime. Conservative jurists, viewing that regime as “settled law,” could do likewise to avoid even the appearance of judicial activism. The approach of liberals is understandable: Long ago they abandoned the written for the “living” Constitution, which enables ad hoc adjudication, the rule of law notwithstanding. The approach of conservative “originalists,” however, is less easily explained, since they purport to take the Constitution seriously.
Yet in Robert Bork’s The Tempting of America, where conservatives often turn, we find an answer. Describing what he calls the “Madisonian dilemma,” Judge Bork writes that America’s “first principle is self‐government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second principle is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.” (emphasis added)
That turns Madison on his head. James Madison stood for limited government, not wide‐ranging democracy. His first principle was that in wide areas individuals are entitled to be free simply because they are born free. His second principle was that in some areas majorities are entitled to rule because we have authorized them to. That gets the order right: individual liberty first, self‐government second, as a means for securing liberty.
Yet we repeatedly see conservative jurists, as here, ignoring the true Madison — deferring to the legislature when their duty, as Madison put it, is to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” A perfect example is Justice Antonin Scalia’s dissent in a 2000 case, Troxel v. Granville, which found that Washington State’s grandparent visitation act violated the right of fit parents to control access to their children. Dissenting, Justice Scalia argued that although the parental right is among the unalienable rights proclaimed by the Declaration of Independence and the unenumerated rights retained pursuant to the Ninth Amendment, that amendment does not authorize “judges to identify what [those rights] might be, and to enforce the judges’ list against laws duly enacted by the people.” Thus, just as the Abigail Alliance majority did, he would defer to the legislature to tell us what those rights are — the very legislature that had extinguished the parental right that he had just located in the Ninth Amendment.
The problem with that view, of course, is that it renders the Ninth Amendment a nullity — hardly what an originalist wants. Moreover, while recognizing retained unenumerated rights as “constitutional,” it reduces them to a second class status since they are unenforceable. And that means they are not rights at all since rights are invoked, in the political context, only defensively, against threats from the majority. Yet on this view they can be extinguished by a mere majority.
There is, of course, no bright line between enumerated and unenumerated rights. In interpreting the Constitution, inferences are essential. As Judge Rogers put it, “were it impermissible to draw any inferences from a broader right to a narrower right, nearly all of the Supreme Court’s substantive due process case law would be out of bounds.” The only question, therefore, is whether the inferences are drawn correctly, and from sound underlying principles. To do that well, however, judges must have a sure grasp of those principles. That is the main problem today, as Tuesday’s decision illustrates. The Framers would be appalled to see federal bureaucrats standing between dying patients and the medicines that might save them — sanctioned by a Constitution turned upside‐down. Fortunately, this case will be appealed and the Supreme Court may yet examine it afresh.