Controversial medical treatment and the right to health care.

People have long argued that health care is a basic right that the government is obligated to provide. Our constitutional system, however, is notoriously lax in recognizing positive rights to state-funded resources. As a result, health care coverage for the more than forty million uninsured remains hostage to politics and the political process. A less sweeping approach would talk about health care as a negative right. A negative right to health care means the right of a patient and doctor to pursue a course of treatment of their choosing without interference by the government. While a far cry from a positive right to universal coverage, a negative right is not to be sneered at. Such a right anchors a woman's use of abortion and contraception, and underlies the great deference ordinarily accorded doctors and patients to pursue medical care. A negative right to health care may also play a role in disputes about access to new medical and alternative treatments. Because conflicts over negative rights to health care have usually been settled in the policy or legislative arena, it is of more than passing interest that a prestigious federal appeals court has now staked out a role for the courts by holding that constitutional rights to life and liberty protect such rights. (1) Although such a right is not absolute and may be limited by compelling state interests, the constitutional principle recognized is a significant one. If upheld on appeal, the principle underlying Abigail Alliance for Improved Access to Treatment v. von Eschenbach will require the government to show that there is a substantial, narrowly tailored justification for restricting patient and physician choice about disputed therapies in many different areas, including access to new cancer drugs, embryonic stem cell therapies, and organ transplants. Access to Drugs in Phase II Trials The case arose out of a long campaign by several groups, including both free market business interests and patient advocates, to loosen the Food and Drug Administration's rules for approving new drugs. The steady drumbeat of criticism and the activist efforts of AIDS advocacy groups did lead in the late 1980s to major changes in FDA policy. There is now a fast-track procedure for drugs that show early promise and clear authority for compassionate use exceptions for phase III drugs. (2) Yet this new flexibility has not quieted all attacks. The father of a young woman who had died from cancer after being denied access to the then-experimental cancer drug Erbitux founded the Abigail Alliance for Better Access to Developmental Drugs in memory of his daughter. (3) Along with the Washington Legal Foundation, a conservative public interest law firm, it formally petitioned the FDA to allow cancer patients to use any drugs that had been approved for phase II clinical trials. When the petition was turned down, the two groups sued, claiming that FDA rules violated their constitutional right to health care. The federal district court dismissed their complaint on the ground that there was no such right. In a novel move, the Court of Appeals for the District of Columbia, widely viewed as the most important court outside of the Supreme Court, reversed and remanded the case to the lower court to hear evidence as to whether the government could show a narrowly tailored, compelling need to deny cancer patients access outside a study to phase II drugs. The government has appealed the decision. While no final determination of the plaintiffs' claims is expected soon, the principle unleashed has potentially wide application in other areas of medicine. [See also Rebecca Dresser's discussion in At Law, in this issue, for further analysis of the case.] Both liberals and conservatives have criticized the decision. Liberals dislike it because it appears to constrain the FDA from preventing unsafe, ineffective drugs from reaching the market, thus exposing end-stage cancer patients to exploitation by unscrupulous sellers. …