The State is Control

From the NYT - I get an email digest - comes a court ruling that makes very little sense to me:

A federal appeals court ruled yesterday that patients with terminal illnesses do not have a constitutional right to use medicines that have not yet won regulatory approval.

I suspect this was maybe the case for some time between the 1950s and early 1980s, but if I remember my history right, it was AIDS activists that first convinced the government and pharmaceutical companies to use drugs on terminal patients that hadn't been through the full approval process yet. And yet AIDS is mentioned nowhere in the story, so I could be wrong - or the story could be ignoring something important. I could go either way.

On the other hand, I'm pretty firm in my belief that this is a bad ruling. For example:

Judge Thomas B. Griffith, writing for the majority, said a right to experimental drugs was not deeply rooted in the nation’s history and tradition. Judge Griffith said the right of self-defense “cannot justify creating a constitutional right to assume any level of risk without regard to the scientific and medical judgment expressed through the clinical testing process.”

In a dissent, Judge Judith W. Rogers wrote that it was “startling” that the “right to try to save one’s life is left out in the cold,” not protected by the due process clause of the Constitution, “despite its textual anchor in the right to life.”

Frank Burroughs, the founder of the Abigail Alliance, said his group was “dumbfounded that most of the justices tragically missed the merits of the case.” Mr. Burroughs vowed to appeal to the Supreme Court.

Yeah. I'm not buying Griffiths' argument, not without something to back it up. This smells suspiciously like a case of someone using the Constitution when it's convenient...let me see what the Internet has to say:

Yup. Griffith is a Federalist Society member, and those folks are well-known hacks who use atrocious legal reasoning to mask their let's-all-return-to-the-1950s opinions.

Again thinking of AIDS drugs clinical trials, it was determined then that the possibility of saving someone's life - especially when they are terminally ill and can choose to take the experimental drug with full knowledge of the consequences - outweighs both the need for profit on the part of drug companies and the possibility that the drug is not safe. It does not, in mind, necessarily put the company at risk of either losing profit or losing face. Furthermore, this argument is bullshit:

He and others say that if drugs were made available after only preliminary testing, drug companies would have little incentive to conduct full clinical trials to determine if a drug really works.

This makes no sense when applied to terminally ill patients. The vast majority of drug profits come from folks who are not terminally ill. This only makes sense if drug companies are really that greedy....aha. Fuckers.

At any rate, I wonder if this will affect AIDS patients in addition to other terminally ill patients.