Court Recognizes Right of Self-Preservation

On May 2, 2006, the United States Court of Appeals of the District of Columbia Circuit released its opinion in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach in which the court determined the “[b]arring a terminally ill patient from the use of a potentially livesaving treatment impinges on his right of self-preservation.”

Here is an excerpt from the case:

Accordingly, we hold that the district court erred in dismissing the Alliance’s complaint * * * for failure to state a claim. We conclude, upon applying the Glucksberg analysis and heeding the protected liberty interests articulated by the Supreme Court, that where there are no alternative government-approved treatment options, a terminally ill, mentally competent adult patient’s informed access to potentially life-saving investigational new drugs determined by the FDA after Phase I trials to be sufficiently safe for expanded human trials, warrants protection under the Due Process Clause.

The prerogative asserted by the FDA — to prevent a terminally ill patient from using potentially life-saving medication to which those in Phase II clinical trials have access — thus impinges upon an individual liberty deeply rooted in our Nation’s history and tradition of self-preservation. * * * The district court never reached the question of whether the challenged FDA policy violates this protected liberty interest, and we therefore remand the case to the district court to determine whether the FDA’s policy barring access to post-Phase I investigational new drugs by terminally ill patients is narrowly tailored to serve a compelling governmental interest.

The dissenting judge in the 2-1 decision rejected the majority’s analysis stating that there is “no evidence of a right, deeply rooted in our nation’s history and traditions, to procure and use experimental drugs.”

For an analysis of this case, see Molly McDonough, A Right to Self-Preservation? Ruling on Use of Unapproved Drugs Could Have a Major Effect, ABA J. e-Report, May 12, 2006.