the word abortion isn't in there either...
Posted on 05/03/2006 6:52:31 PM PDT by RWR8189
THE U.S. COURT of Appeals for the D.C. Circuit discovered a new constitutional right yesterday: "the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor's advice, even where that medication carries risks for the patient" and has not been approved by the Food and Drug Administration. If you don't remember reading those particular words in the founding charter, don't kick yourself. An ideologically eclectic panel of the normally sober D.C. Circuit pulled this "right" out of thin air. If the full court, or the Supreme Court, doesn't take another look, it could sow the seeds of all kinds of mischief.
We're sympathetic to the plight of desperately ill people who may -- or may not -- be helped by experimental drugs that are just beyond their reach. Regulators and drug companies have taken some steps to address their need, and there may be more they can do to make unapproved therapies available to people ineligible to participate in clinical trials.
But since when did access to experimental therapies become a "fundamental right" -- defined in Supreme Court case law as a right deeply embedded in the fabric of American tradition and without which ordered liberty would not be meaningfully free? To root this right in tradition, the majority opinion -- written by the relatively liberal Judge Judith W. Rogers for herself and conservative Chief Judge Douglas H. Ginsburg -- cites the age-old right of "personal security," along with the fact that "the government has not blocked access to new drugs throughout the greater part of our Nation's history" and the notion that "an individual has a . . . right to refuse life-sustaining medical treatment." The flip side of this principle, the majority argues, must be "the right
(Excerpt) Read more at washingtonpost.com ...
It it is not a right, but why should be keep a terminally ill person from using an experimental drug? At least this right does not take the life of an innocent person.
Who's paying?
The Washington Post has the argument backwards. It's not a question of what rights may or may not be enumerated in the Constitution. The Framers were quite clear on that point: The enuerated rights of the people was absolutely not to be taken as a complete and exhaustive list.
The same is not true of the power of the government. Here, the Framers were also quite clear: The government only has those powers explicitly enumerated in the Constitution.
So the question isn't "where is it written that patients have the right to choose their own medications?" Instead, the question is "where is it written that the government has the power to control what medications patients may choose?"
Of course, the right to choose one's own medications is not at all the same as the right to have the taxpayers pay for it.
I'm not so sure that this is a stretch of the legal term "right". A person has the right to life, and therefore has the inherent right to preserve their life. Experimental drugs for cancer patients should be permitted.
No doubt it would fall under the Commerce Clause.
I would say it IS a right in the sense that the ownership of one's own body is part & parcel of the right to life.
So the question isn't "where is it written that patients have the right to choose their own medications?" Instead, the question is "where is it written that the government has the power to control what medications patients may choose?"
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Exactly!!!
I would take the converse of your argument. The burden should not be to make a case for permission; the state should be require to make a strong case for prohibition.
Gee, I thought they were in favor of people having a right to control what happens to their own bodies. I guess that's only when it involves killing babies.
Are you saying the FDA is unconstitutional?
Since everyone is not a doctor nor a pharmacist, you can't really claim that the average joe can make an informed decision. Under your theory, there should be no prescription requirements or regulations of any sort.
The court conferred no right. God gives us out rights. The Constitution says which God-given rights the government may not interfere with.
"So the question isn't "where is it written that patients have the right to choose their own medications?" Instead, the question is "where is it written that the government has the power to control what medications patients may choose?"
Correct. The Constitution does not "give" rights it only limits some rights that citizens already possess.
" Under your theory, there should be no prescription requirements or regulations of any sort."
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I maintain that there should be no regulation, beyond recommendation and information.
You claim that "the average joe can make an informed decision. ". Well, that's what doctors are for, so that people can consult them, but the decision should always be that of the patient, NOT the government.
According to your stance, you think people are too stupid to make decisions about their health, and we need Big Brother Nanny government to protect us from ourselves.
I reject that notion.
If the FDA wants to label some drugs as "approved by FDA" and some "not approved yet by the FDA" and some "disapproved by the FDA", it's fine with me. But they should NOT prevent people from accessing medications they want to take.
Just an example, there are many medications available in Europe, with proven records, but they are not allowed in the US, because the FDA's tyrannical power.
I completely agree with that.
Gee, I'm not sure if you know how to read!
Nothing new there. It's what the freaks do.
"It it is not a right, but why should be keep a terminally ill person from using an experimental drug? "
Good question for legislators, not pretend legislators-on-the-bench.
Frankly, I think the FDA regulation scheme is overdone and there should be a relaxation of usage of new drugs.
the word abortion isn't in there either...
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