Do U.S. Ebola Patients Have a Constitutional Right to Try Experimental Drugs?

Assume the
following dire scenario: You become infected with Ebola and are
quarantined by U.S. medical officials. A promising new experimental
drug is in the works, but it hasn’t yet received final approval.
You want to try the drug but the authorities won’t let you. Do you
have a constitutional right to try to preserve your life by taking
the experimental drug? Most Americans would probably say
yes. But according to a prominent federal court, the
answer is no.

In 2007 the U.S. Court of Appeals for the District of Columbia
Circuit ruled against a group of terminally ill cancer patients who
were suing the FDA in order to gain access to experimental drugs
that had the potential to save their lives. According to the D.C.
Circuit’s ruling in
Abigail Alliance for Better Access to Developmental Drugs v.
Eschenbach, however, nothing in the Constitution protects
“a fundamental right of access for the terminally ill to
experimental drugs.”

Writing in dissent, Judge Judith Ann Rogers, joined by Chief
Judge Douglas Ginsburg, attacked the majority’s “startling”
decision and its “stunning misunderstanding of the stakes” involved
for the terminally ill. “To deny the constitutional importance of
the right to life and to attempt to preserve life is to move from
judicial modesty to judicial abdication, as well as confusion,”
Rogers and Ginsburg declared.

Unfortunately, despite the strength of that dissent and the many
failings of the majority opinion, the Supreme Court refused to take
the case on appeal. The D.C. Circuit’s ruling remains on the
books.

For Reason‘s ongoing coverage of the Ebola outbreak,
see here.