ABIGAIL ALLIANCE FOR BETTER ACCESS v. Von Eschenbach

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 1, 2007 Decided August 7, 2007

No. 04-5350

ABIGAIL ALLIANCE FOR BETTER ACCESS TO
DEVELOPMENTAL DRUGS AND
WASHINGTON LEGAL FOUNDATION,
APPELLANTS

v.

ANDREW VON ESCHENBACH,
IN HIS OFFICIAL CAPACITY AS COMMISSIONER, FOOD AND
DRUG ADMINISTRATION AND
MICHAEL O. LEAVITT, IN HIS OFFICIAL CAPACITY AS
SECRETARY, U.S. DEPT. OF HEALTH AND HUMAN SERVICES,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01601)

J. Scott Ballenger argued the cause for appellants. With
him on the briefs were Daniel J. Popeo, David A. Price, and
Richard A. Samp.

Brian P. Brooks and Arthur W.S. Duff were on the brief for
amici curiae John E. Calfee, et al. in support of appellants.
 2

John J. Edmonds was on the brief for amici curiae Emil
Freireich and Stephen Strum in support of appellants.

Jonathan F. Cohn, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellees.
With him on the brief were Peter D. Keisler, Assistant Attorney
General, Jeffrey A. Taylor, U.S. Attorney, Jeffrey S. Bucholtz,
Principal Deputy Assistant Attorney General, Michael J. Ryan
and Rhonda C. Fields, Assistant U.S. Attorneys, Mark B. Stern
and Scott R. McIntosh, Attorneys, Daniel Meron, General
Counsel, U.S. Department of Health and Human Services, Eric
M. Blumberg, Deputy Chief Counsel for Litigation, and Karen
E. Schifter, Associate Chief Counsel. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.

Samuel D. Turner was on the brief for amici curiae
American Society of Clinical Oncology, et al. in support of
appellees.

William B. Schultz was on the brief for amici curiae
National Organization for Rare Disorders, et al. in support of
appellees.

Before: GINSBURG, Chief Judge, SENTELLE, HENDERSON,
RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and
KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge ROGERS, with
whom Chief Judge GINSBURG joins.

GRIFFITH, Circuit Judge: This case presents the question
whether the Constitution provides terminally ill patients a right
of access to experimental drugs that have passed limited safety
 3

trials but have not been proven safe and effective. The district
court held there is no such right. A divided panel of this Court
held there is. Because we conclude that there is no fundamental
right “deeply rooted in this Nation’s history and tradition” of
access to experimental drugs for the terminally ill, see
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)
(quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)
(plurality opinion)), we affirm the judgment of the district court.

I.

A.

The Abigail Alliance for Better Access to Developmental
Drugs (the “Alliance”) is an organization of terminally ill
patients and their supporters that seeks expanded access to
experimental drugs for the terminally ill. The Food, Drug, and
Cosmetic Act (“FDCA” or “Act”), however, generally prohibits
access to new drugs unless and until they have been approved by
the Food and Drug Administration (“FDA”). See 21 U.S.C.
§ 355(a). Gaining FDA approval can be a long process. First,
an experimental drug’s sponsor (e.g., a drug company) must
submit an application for approval. See id. § 355(a). Because
no drug may be approved without a finding of “substantial
evidence that the drug will have the effect it purports or is
represented to have,” id. § 355(d)(5), an application must
contain “full reports of investigations which have been made to
show whether or not such drug is safe for use and whether such
drug is effective in use,” id. § 355(b)(1)(A). Such reports rely
in large measure on clinical trials with human subjects.

But before a sponsor can even begin human testing, it must
submit for the FDA’s approval an investigational new drug
application (“IND”), see id. § 355(i)(1); see also 21 C.F.R. pt.
312, containing detailed information establishing that human
 4

testing is appropriate, see 21 C.F.R. § 312.23. Once the
application for human testing has been approved, see id.
§ 312.20, several phases of clinical testing begin. The
Alliance’s amended complaint alleges that this testing process
is an extremely lengthy one, requiring nearly seven years for the
average experimental drug.1 Am. Compl. ¶ 15.

Clinical testing for safety and effectiveness requires three
or sometimes four phases. See 21 C.F.R. § 312.21. Phase I
involves the initial introduction of a new drug into human
subjects. A Phase I study usually consists of twenty to eighty
subjects and is “designed to determine the metabolism and
pharmacologic actions of the [new] drug in humans, the side
effects associated with increasing doses, and, if possible, to gain
early evidence on effectiveness.” Id. § 312.21(a)(1). Although
gathering data on effectiveness may be part of Phase I, its
primary focus is to determine whether the drug is safe enough
for continued human testing. See id. Phase II studies are “well
controlled” and “closely monitored” clinical trials of no more
than several hundred subjects, used to evaluate both the
“effectiveness of the drug for a particular indication” and its
“common short-term side effects and risks.” Id. § 312.21(b).

Phase III studies are expanded clinical trials of several
hundred to several thousand subjects designed to
“gather . . . additional information about effectiveness and safety
that is needed to evaluate the overall benefit-risk relationship of
the drug and to provide an adequate basis for physician

1
In FDA parlance, experimental drugs that have not yet been
approved for public use are deemed “investigational drug[s].” See 21
C.F.R. § 312.3(b).
 5

labeling.” Id. § 312.21(c).2 At any time during the clinical
trials, a drug sponsor is required to notify the FDA of “[a]ny
adverse experience associated with the use of the drug that is
both serious and unexpected,” id. § 312.32(c)(1)(A), and the
FDA may order a “clinical hold” halting the trials if it
determines that safety concerns so warrant, id. § 312.42. To
guide the clinical testing process, Congress has directed the
FDA to establish “[s]cientific advisory panels” to “provid[e]
expert scientific advice and recommendations to the Secretary
regarding a clinical investigation of a drug or the approval for
marketing of a drug.” 21 U.S.C. § 355(n)(1). These panels must
include scientists from a variety of disciplines. See id.
§ 355(n)(3).3

2
In some circumstances, a Phase IV review is conducted,
which “delineate[s] additional information about the drug’s risks,
benefits, and optimal use.” 21 C.F.R. § 312.85.
3
Section 355(n)(3) of Title 21, United States Code, provides:

The Secretary shall make appointments to each
panel . . . so that each panel shall consist of—

(A) members who are qualified by training and
experience to evaluate the safety and effectiveness of
the drugs to be referred to the panel and who, to the
extent feasible, possess skill and experience in the
development, manufacture, or utilization of such
drugs;

(B) members with diverse expertise in such fields as
clinical and administrative medicine, pharmacy,
pharmacology, pharmacoeconomics, biological and
physical sciences, and other related professions;

(C) a representative of consumer interests, and a
 6

Terminally ill patients need not, however, always await the
results of the clinical testing process. The FDA and Congress
have created several programs designed to provide early access
to promising experimental drugs when warranted. For example,
under the “treatment IND” program, the FDA may approve use
of an investigational drug by patients not part of the clinical
trials for the treatment of “serious or immediately life-
threatening disease[s]” if there exists “no comparable or
satisfactory alternative drug or other therapy,” 21 C.F.R.
§ 312.34(a), (b)(1)(i)-(ii); if “[t]he drug is under investigation in
a controlled clinical trial,” id. § 312.34(b)(1)(iii); and if the
drug’s sponsor “is actively pursuing marketing approval of the
investigational drug with due diligence,” id. § 312.34(b)(1)(iv).
The FDA reserves the right, however, to deny any treatment
IND request if (1) the agency believes there is no “reasonable
basis” to conclude that the drug is effective; or (2) granting the
request “[w]ould . . . expose the patient[] . . . to an unreasonable
and significant additional risk of illness or injury.” Id.
§ 312.34(b)(3). Sponsors may not profit from any approved
treatment IND program and may only “recover costs of
manufacture, research, development, and handling of the
investigational drug.” Id. § 312.7(d)(3).4

representative of interests of the drug manufacturing
industry not directly affected by the matter to be
brought before the panel; and

(D) two or more members who are specialists or have
other expertise in the particular disease or condition
for which the drug under review is proposed to be
indicated.
4
The FDA has several other regulatory programs designed to
hasten research of the safety and effectiveness of drugs for terminally
or severely ill patients and allow early access where scientifically and
 7

B.

Concluding that the FDA’s current process for early access
to new drugs was inadequate to meet the needs of its terminally
ill members, the Alliance submitted its own proposals to the
FDA. Those proposals culminated in a “citizen petition” to the
FDA, see 21 C.F.R. § 10.25, arguing that there is a “different
risk-benefit tradeoff facing patients who are terminally ill and
who have no other treatment options.” Abigail Alliance Citizen
Petition, In re Tier 1 Initial Approval Program to Expedite the
Availability of Lifesaving Drugs 9 (June 11, 2003). Although
the Alliance agreed that “[e]xtensive marshalling of evidence
regarding drug interactions, dose optimization, and the like” is
“appropriate for new drugs to treat patients with other
alternatives . . . [,] these steps may well entail a delay that is
fatal” for terminally ill patients. Id. The Alliance contended
that these patients “should have the ability to opt for a new
treatment that has met a lower evidentiary hurdle with respect to
safety and efficacy.” Id. The Alliance’s proposal suggested that

medically warranted. For example, under its “Fast Track” program,
the agency has “established procedures designed to expedite the
development, evaluation, and marketing of new therapies intended to
treat persons with life-threatening and severely-debilitating illnesses,
especially where no satisfactory alternative therapy exists.” 21 C.F.R.
§ 312.80. Fast Track allows the FDA to waive its IND application
requirement if it is “unnecessary or cannot be achieved,” id. § 312.10,
and even allows a waiver request to be made “[i]n an emergency . . .
by telephone or other rapid communication,” id. The “Accelerated
Approval” program provides a truncated approval process for “certain
new drug products that have been studied for their safety and
effectiveness in treating serious or life-threatening illnesses and that
provide meaningful therapeutic benefit to patients over existing
treatments.” Id. § 314.500. The FDA categorizes some new drugs,
including nearly all cancer drugs, as “priority drugs” and seeks to
accelerate their availability.
 8

the FDA allow early access based upon “the risk of illness,
injury, or death from the disease in the absence of the drug.” Id.
at 4. Accordingly, the Alliance requested that the FDA
promulgate new regulations that would allow sponsors to market
experimental drugs, under some circumstances, after the
completion of Phase I trials.

The FDA never responded to the Alliance’s citizen petition,
but did respond to the Alliance’s earlier submissions. After
noting that a number of senior FDA officials had reviewed those
submissions, the agency concluded that the Alliance “raised
several important questions about expanded access that we
believe deserve further consideration,” but questioned whether
the specific proposal put forward by the Alliance “would have
the intended desirable effects for patients.” Letter from Peter J.
Pitts, Associate Commissioner for External Relations,
Department of Health and Human Services, to Frank Burroughs,
President, Abigail Alliance for Better Access to Developmental
Drugs 3 (Apr. 25, 2003). The officials concluded that the early
access proposed by the Alliance “points to an area of significant
range of opinion within the patient and provider communities
about the standards that should be met before a drug is
marketed.” Id. at 4. Although “some members of the cancer
community have suggested that [the] FDA needs to maintain a
strong clinical trial system as the basis of the approval of cancer
drugs, . . . others, like [the Alliance], have criticized [the FDA]
for relying too heavily on completing certain trials before
approval.” Id. The FDA noted that “[i]n the realm of reviewing
medical products to treat serious and life-threatening diseases,
there is inevitable tension between early availability of products
to patients, especially patients with refractory disease, and the
need to obtain sufficient data to provide a reasonable
expectation of benefit and lack of excessive harm.” Id.
 9

Relying upon its experience exercising its scientific and
medical judgment in creating its regulations for experimental
drugs and, in certain circumstances, exceptions to those
regulations for the terminally ill, the FDA noted that “a
reasonably precise estimate of response rate” and “enough
experience to detect serious adverse effects” are “critical” in
determining when experimental drugs should be made available.
Id. For example, most experimental cancer drugs “have
potentially lethal toxicity, with potentially large effects on a
patient’s remaining quality of life.” Id. Accordingly, “it does
not serve patients well to make drugs too widely available
before there is a reasonable assessment of such risks to guide
patient decisions, and experience in managing them.” Id. at 4-5.
The FDA concluded that accepting the Alliance’s proposal
“would upset the appropriate balance that [it is] seeking to
maintain, by giving almost total weight to the goal of early
availability and giving little recognition to the importance of
marketing drugs with reasonable knowledge for patients and
physicians of their likely clinical benefit and their toxicity.” Id.
at 5.

Having thus been rejected by the FDA, the Alliance turned
to the courts, arguing that the United States Constitution
provides a right of access to experimental drugs for its members.
In a complaint that mirrored much of its earlier submissions to
the FDA, the Alliance argued that the FDA’s lengthy clinical
trials, combined with the “FDA’s restrictions on pre-approval
availability[,] amount to a death sentence for these [terminally
ill] patients.” Am. Compl. ¶¶ 15-17. Nor, the Alliance argues,
are the FDA’s exceptions to the clinical testing process
sufficient to provide the terminally ill the access they need
because they “are small, when they exist at all,” and the ban on
profits prevents many drug sponsors from participating. Id.
¶ 18.
 10

“Terminally ill patients,” in the Alliance’s view, “are
typically willing to assume risks . . . .” Id. ¶ 19. Before the
district court, the Alliance argued that the Constitution
guarantees them the right to do so. The district court rejected
that argument, holding that “there is no constitutional right of
access to unapproved drugs.” Abigail Alliance for Better Access
to Developmental Drugs v. McClellan, No. 03-1601, 2004 WL
3777340, at *1 (D.D.C. Aug. 30, 2004). A divided panel of this
Court reversed, concluding 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.”
Abigail Alliance for Better Access to Developmental Drugs v.
von Eschenbach, 445 F.3d 470, 486 (D.C. Cir. 2006). We
vacated that decision and granted rehearing en banc. See
Abigail Alliance for Better Access to Developmental Drugs v.
von Eschenbach, No. 04-5350 (D.C. Cir. Nov. 21, 2006).

As framed by the Alliance, we now consider:

Whether the liberty protected by the Due Process
Clause embraces the right of a terminally ill
patient with no remaining approved treatment
options to decide, in consultation with his or her
own doctor, whether to seek access to
investigational medications that the [FDA]
concedes are safe and promising enough for
substantial human testing.
 11

Appellants’ Br. at 1.5 That is, we must determine whether
terminally ill patients have a fundamental right to experimental
drugs that have passed Phase I clinical testing. If such a right
exists, the Alliance argues that both 21 C.F.R. § 312.34(b)(3)
(preventing access to experimental drugs for terminally ill
patients where there is insufficient evidence of effectiveness or

5
The dissent has recast the Alliance’s proposed right away
from the terms used in its briefs and oral argument—a right to access
investigational new drugs—into a right “to try to save one’s life,”
which has “its textual anchor in the right to life [expressed in the Fifth
Amendment].” Dissent at 2-3. Regardless of how it is described, we
must examine the proposed right under Glucksberg, which specifically
cautions against the type of broad generalization the dissent now
employs. See Glucksberg, 521 U.S. at 721 (requiring a “‘careful
description’ of the asserted fundamental liberty interest”). If the
asserted right is so broad that it protects a person’s efforts to save his
life, it might subject to strict scrutiny any government action that
would affect the means by which he sought to do so, no matter how
remote the chance of success. The Supreme Court rejected a similar
attempt to broadly define the right at issue in Reno v. Flores when it
refused to accept the petitioner’s definition as the “freedom from
physical restraint” and instead cast the right as the “right of a child
who has no available parent, close relative, or legal guardian, and for
whom the government is responsible, to be placed in the custody of a
willing-and-able private custodian rather than of a
government-operated or government-selected child-care institution.”
Reno v. Flores, 507 U.S. 292, 302 (1993). The dissent suffers from
the same flaw in arguing that this is about the right to save one’s life,
because, in the end, this case is about the right to access experimental
and unproven drugs in an attempt to save one’s life, which we
conclude under Glucksberg is not deeply rooted in our Nation’s
history and traditions. By describing too broadly at the outset a
proposed right that will cover the Alliance’s more narrow claim, the
dissent fails Glucksberg’s threshold requirement of a carefully
described right. We need not pursue the arguments that follow that
initial misstep.
 12

where there is an unreasonable risk of injury) and 21 C.F.R.
§ 312.7 (prohibiting drug manufacturers from profiting on the
sale of experimental drugs) must be subjected to strict scrutiny
because they interfere with a fundamental constitutional right.
We do not address the broader question of whether access to
medicine might ever implicate fundamental rights.

II.

The Due Process Clause of the Fifth Amendment provides
that “[n]o person shall be . . . deprived of life, liberty, or
property, without due process of law.” U.S. CONST. amend. V.
The Supreme Court has held that the protections of the
Amendment “guarantee[] more than fair process.” Glucksberg,
521 U.S. at 719. The Court has stated that “[t]he Clause . . .
provides heightened protection against government interference
with certain fundamental rights and liberty interests,” id. at 720
(citing Reno v. Flores, 507 U.S. 292, 301-02 (1993); Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)),
including “the rights to marry, to have children, to direct the
education and upbringing of one’s children, to marital privacy,
to use contraception, to bodily integrity, and to abortion,”
Glucksberg, 521 U.S. at 720 (citations omitted).

As such rights are not set forth in the language of the
Constitution, the Supreme Court has cautioned against
expanding the substantive rights protected by the Due Process
Clause “because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.” Collins v.
Harker Heights, 503 U.S. 115, 125 (1992) (citing Regents of
Univ. of Mich. v. Ewing, 474 U.S. 214, 225-26 (1985)). There
is an additional and substantial concern that courts must also
consider: “By extending constitutional protection to an asserted
right or liberty interest, we, to a great extent, place the matter
outside the arena of public debate and legislative action.”
 13

Glucksberg, 521 U.S. at 720. Thus, the Supreme Court has
directed courts to “exercise the utmost care whenever we are
asked to break new ground in this field, lest the liberty protected
by the Due Process Clause be subtly transformed into the policy
preferences of the [courts’ members].” Id. (quotation marks and
citations omitted); see Moore, 431 U.S. at 502 (“As the history
of the Lochner era demonstrates, there is reason for concern lest
the only limits to such judicial intervention become the
predilections of those who happen at the time to be Members of
this Court.”) (footnote omitted).

In Glucksberg, the Supreme Court described its
“established method of substantive-due-process analysis” as
having “two primary features.” Glucksberg, 521 U.S. at 720.

First, we have regularly observed that the Due
Process Clause specially protects those
fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history
and tradition and implicit in the concept of
ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed.
Second, we have required in
substantive-due-process cases a careful
description of the asserted fundamental liberty
interest.

Id. at 720-21 (quotation marks and citations omitted).

We will assume arguendo that the Alliance’s description of
its asserted right would satisfy Glucksberg’s “careful
 14

description” requirement.6 Looking to whether the Alliance has
demonstrated that its right is deeply rooted in this Nation’s
history, tradition, and practices, the Alliance’s claim for
constitutional protection rests on two arguments: (1) that
“common law and historical American practices have
traditionally trusted individual doctors and their patients with
almost complete autonomy to evaluate the efficacy of medical
treatments”; and (2) that FDA policy is “inconsistent with the
way that our legal tradition treats persons in all other life-
threatening situations.” Appellants’ Br. at 31. More
specifically, the Alliance argues that the concepts of self-
defense, necessity, and interference with rescue are broad
enough to demonstrate the existence of the fundamental right
they seek—a right for “persons in mortal peril” to “try to save
their own lives, even if the chosen means would otherwise be
illegal or involve enormous risks.” Id. at 32.

A.

“We begin, as we do in all due process cases, by examining
our Nation’s history, legal traditions, and practices.”

6
We nonetheless have serious doubt about whether the
Alliance’s description of its proposed constitutional right could ever
pass constitutional muster. The Alliance’s claimed right depends on
a regulatory determination that the drug is safe for testing, prompting
an obvious question: How can a constitutional right be defined by an
administrative regulation that is subject to change? Would an FDA
decision requiring increased testing for safety and efficacy before the
commencement of human clinical trials affect the Alliance’s
constitutional right? Moreover, we find it difficult to imagine how a
right inextricably entangled with the details of shifting administrative
regulations could be “deeply rooted in this Nation’s history and
tradition and implicit in the concept of ordered liberty.” Glucksberg,
521 U.S. at 721 (quotation marks and citations omitted).
 15

Glucksberg, 521 U.S. at 710. The Alliance argues that its right
can be found in our history and legal traditions because “the
government never interfered with the judgment of individual
doctors about the medical efficacy of particular drugs until
1962,” i.e., when major amendments were made to the Food,
Drug, and Cosmetic Act. Appellants’ Br. at 44 (emphasis
added); see id. at 23 (“[T]he common law consistently left
judgments about the efficacy of medical treatments in the hands
of individual doctors and their patients. Governmental review
of the effectiveness of drugs did not exist in this country at all
until 1962 . . . .”) (emphasis added).

The Alliance has little to say, however, about our Nation’s
history of regulating the safety of drugs. The Alliance’s effort
to focus on efficacy regulation ignores one simple fact: it is
unlawful for the Alliance to procure experimental drugs not only
because they have not been proven effective, but because they
have not been proven safe. Although the Alliance contends that
it only wants drugs that “are safe and promising enough for
substantial human testing,” id. at 1, i.e., drugs that have passed
Phase I testing, current law bans access to an experimental drug
on safety grounds until it has successfully completed all phases
of testing. See 21 C.F.R. § 312.21(b) (requiring that Phase II
studies examine “common short-term side effects and risks” of
new drugs) (emphasis added); id. § 312.21(c) (requiring Phase
III studies to “gather . . . additional information about
effectiveness and safety that is needed to evaluate the overall
benefit-risk relationship of the drug”) (emphasis added). Thus,
to succeed on its claim of a fundamental right of access for the
terminally ill to experimental drugs, the Alliance must show not
only that there is a tradition of access to drugs that have not yet
been proven effective, but also a tradition of access to drugs that
have not yet been proven safe.
 16

Examining, as we are required to do under Glucksberg, our
Nation’s history, legal traditions, and practice with respect to the
regulation of drugs for efficacy and safety, we conclude that our
Nation has long expressed interest in drug regulation, calibrating
its response in terms of the capabilities to determine the risks
associated with both drug safety and efficacy.

Drug regulation in the United States7 began with the
Colonies and States when the Colony of Virginia’s legislature
passed an act in 1736 that addressed the dispensing of more
drugs than was “necessary or useful” because that practice had

7
Drug regulation also has a long history in England,
beginning no later than Henry VI’s royal decree in 1447 that gave
grocers the power to inspect “anis, wormseed, rhubarb, scammony,
spikenard, senna and all sort of drugs belonging to medicine, so as not,
in the buying of these to be hurt in their bodily health.” EDWARD
KREMERS, KREMERS AND URDANG’S HISTORY OF PHARMACY 111 (4th
ed. 1976). The Pharmacy Wares Drugs and Stuffs Act in 1540
allowed inspectors to search apothecaries’ [i.e., pharmacists’] shops
for drugs that were “defective, corrupted and not meet nor convenient
to be ministered in any medicines for the health of man’s body.” John
P. Griffin, Venetian Treacle and the Foundation of Medicines
Regulation, 58 BRIT. J. OF CLINICAL PHARMACOLOGY 317, 319
(2004); see also John P. Griffin & Rashmi R. Shah, History of Drug
Regulation in the United Kingdom, in THE TEXTBOOK OF
PHARMACEUTICAL MEDICINE 457 (John P. Griffin & John O’Grady
eds., 2006). “[W]hen the Society of Apothecaries was chartered
independently ([in] 1617), its master and wardens were empowered to
inspect any pharmacy and to burn before the offender’s door all drugs
and preparations they deemed corrupt or unwholesome.” KREMERS,
supra, at 111. “In the 18th century, power to examine the shops of
apothecaries, chemists and druggists was given to the College of
Physicians ([in] 1723), and cases involving questionable drugs were
judged by a court composed partly of physicians and partly of
apothecaries ([in] 1730).” Id. at 111-12.
 17

become “dangerous and intolerable.” EDWARD KREMERS,
KREMERS AND URDANG’S HISTORY OF PHARMACY 158 (4th ed.
1976).8 The Territory of Orleans (Louisiana) passed an act in
1808 requiring a diploma and an examination before permitting
pharmacists to dispense drugs; Louisiana also prohibited the sale
of deteriorated drugs and restricted the sale of poisons. Id. at
182-84, 214; see David L. Cowen, The Development of State
Pharmaceutical Law, PHARMACY IN HISTORY, Vol. 37 No. 2,
1995, at 54 (noting that the 1808 act prohibited the sale of drugs
that were “injured, moulded, discomposed, or sophisticated” and
placed restrictions on the sale of “any suspicious or dangerous
remedy”). South Carolina enacted legislation in 1817 requiring
pharmacists to obtain licenses, KREMERS, supra, at 184, 214,
followed by Georgia in 1825 and Alabama in 1852, id. at 214.
By 1870, at least twenty-five states or territories had statutes
regulating adulteration (impure drugs), and a few others had
laws addressing poisons. Id. at 216. In the early history of our
Nation, we observe not a tradition of protecting a right of access
to drugs, but rather governments responding to the risks of new
compounds as they become aware of and able to address those
risks. See Cowen, supra, at 56 (“The history of state laws
pertaining to pharmacy obviously reflect[s] the development of
pharmacy scientifically, professionally, and economically.”).

Nor were the States the only regulators of access to drugs.
Although early federal regulation was not extensive, perhaps

8
Although not an example of legislative or regulatory
intervention, in 1630 Nicholas Knopp of Massachusetts was “fined
five pounds, or was whipped, for vending as a cure for scurvy ‘a water
of no worth nor value,’ which he ‘solde att a very deare rate.’” JAMES
HARVEY YOUNG, THE TOADSTOOL MILLIONAIRES: A SOCIAL HISTORY
OF PATENT MEDICINES IN AMERICA BEFORE FEDERAL REGULATION 16
(1961) (quoting Records of the Governor and Company of the
Massachusetts Bay in New England (Boston, 1853), I, 83).
 18

because “[n]ot until interstate commerce began its great
expansion after the Civil War did the need for Federal
rule-making become widely realized,” Wallace F. Janssen,
Outline of the History of U.S. Drug Regulation and Labeling, 36
FOOD DRUG COSM. L.J. 420, 425 (1981), there are early
examples of federal government intervention. In 1848, the
Import Drug Act, ch. 70, 9 Stat. 237 (1848), banned “imported
adulterated drugs” after a Congressional committee concluded
that “this country had become the grand mart and receptacle of
all the refuse [drug] merchandise . . . , not only from the
European warehouses, but from the whole Eastern world.”
Wesley J. Heath, America’s First Drug Regulation Regime: The
Rise and Fall of the Import Drug Act of 1848, 59 FOOD & DRUG
L.J. 169, 175 (2004) (footnote omitted). Congress acted again
when it passed the Biologics Controls Act of 1902, ch. 1378, 32
Stat. 728 (1902), in response to a series of deadly reactions to a
tainted diphtheria vaccine that killed children in New Jersey and
Missouri. Sue McGrath, Only A Matter Of Time: Lessons
Unlearned at the Food and Drug Administration Keep
Americans at Risk, 60 FOOD & DRUG L.J. 603, 604 (2005). This
Act “secure[d] licensing control over both biological drug
laboratories and their products.” Janssen, supra, at 425.
Congress followed with the Pure Food and Drugs Act of 1906,
which prohibited the manufacture of any drug that was
“adulterated or misbranded.” The Pure Food and Drugs Act of
1906, ch. 3915, 34 Stat. 768 (1906).9

9
As the Alliance notes, “the Supreme Court held that the 1906
Act did not prohibit a drug manufacturer from marketing an
ineffective cancer remedy with false therapeutic claims, so long as it
was not adulterated.” Appellants’ Br. at 45 (citing United States v.
Johnson, 221 U.S. 488 (1911)). But Johnson was merely a question
of statutory interpretation, and the Court specifically noted that it
would “say nothing as to the limits of constitutional power.” Johnson,
221 U.S. at 498. Johnson therefore cannot be read to support the
 19

The current regime of federal drug regulation began to take
shape with the Food, Drug, and Cosmetic Act of 1938. See
Federal Food, Drug, and Cosmetic Act of 1938, ch. 675, 52 Stat.
1040 (1938) (codified as amended at 21 U.S.C. § 301 et seq.).
The Act required that drug manufacturers provide proof that
their products were safe before they could be marketed. See id.
The new Act also prohibited false therapeutic claims. Id.
Notably, the drug industry “strenuously objected” to the 1938
Act “ostensibly on the ground that it would deprive the
American people of the right to self-medication,” HARRY A.
TOULMIN, JR., LAW OF FOODS, DRUGS AND COSMETICS 8-9 (2d
ed. 1963)—an argument not unlike the Alliance’s position of
today.

We end our historical analysis where the Alliance would
prefer it begin—with the 1962 Amendments to the FDCA.
Undoubtedly, as the Alliance argues at length, Congress
amended the FDCA in 1962 to explicitly require that the FDA
only approve drugs deemed effective for public use. See Drug
Amendments of 1962, Pub. L. No. 87-781, § 102, 76 Stat. 780,
781 (1962). Thus, the Alliance argues that, prior to 1962,
patients were free to make their own decisions whether a drug
might be effective.10 But even assuming arguendo that efficacy

recognition of a constitutional right to access experimental drugs or
consume any drugs regardless of the risks.
10
Looking to Lawrence v. Texas, the FDA argues that “[t]he
history of the FDCA over the past seventy years is entitled to
particular weight in the substantive due process calculus,” Appellees’
Br. at 31, because, in determining the constitutionality of a Texas
statute prohibiting certain intimate sexual conduct between members
of the same sex, the Supreme Court looked to the Nation’s “laws and
traditions in the past half century” as having the “most relevance” to
the constitutional dispute in that case. Lawrence v. Texas, 539 U.S.
 20

regulation began in 1962, the Alliance’s argument ignores our
Nation’s history of drug safety regulation described above. Nor
can the Alliance override current FDA regulations simply by
insisting that drugs which have completed Phase I testing are
safe enough for terminally ill patients. Current law bars public
access to drugs undergoing clinical testing on safety grounds.
The fact that a drug has emerged from Phase I with a
determination that it is safe for limited clinical testing in a
controlled and closely-monitored environment after detailed
scrutiny of each trial participant does not mean that a drug is
safe for use beyond supervised trials.11 FDA regulation of post-
Phase I drugs is entirely consistent with our historical tradition
of prohibiting the sale of unsafe drugs.

558, 571-72 (2003) (emphasis added). We need not determine today
whether recent history is particularly relevant in measuring the scope
of rights under the Due Process Clause. In this case, there is no
evidence of a deeply rooted right of terminally ill patients to gain
access to experimental drugs—either throughout our Nation’s history
or during the past half century.
11
In fact, the FDA cites numerous examples in which drugs
have been pulled from the market post-Phase I due to safety concerns.
See, e.g., Alex Berenson, End of Drug Trial Is a Big Loss for Pfizer
and Heart Patients, N.Y. TIMES, Dec. 4, 2006, at A1 (highlighting
Pfizer’s decision to pull torcetrapib from a clinical trial of more than
15,000 patients because those taking the drug were dying at a greater
rate than those taking a placebo); Milton Packer et al., Effect of Oral
Milrinone on Mortality in Severe Chronic Heart Failure, 325 NEW
ENG. J. MED. 1468 (1991) (concluding after expanded clinical trials
that milrinone therapy was “associated with a 28 percent increase in
mortality”); Debra S. Echt et al., Mortality and Morbidity in Patients
Receiving Encainide, Flecainide, or Placebo, 324 NEW ENG. J. MED.
781 (1991) (concluding after expanded clinical trials that “[t]here was
an excess of deaths . . . in patients treated with encainide or
flecainide”).
 21

But even setting the safety issue to one side, the Alliance’s
argument that effectiveness was not required before 1962 also
fails under closer scrutiny. First, as a matter of history, at least
some drug regulation prior to 1962 addressed efficacy. More
importantly, an arguably limited history of efficacy regulation
prior to 1962 does not establish a fundamental right of access to
unproven drugs. The amendments made to the FDCA by
Congress throughout the twentieth century demonstrate that
Congress and the FDA have continually responded to new risks
presented by an evolving technology. Recent government
efficacy regulation has reflected Congress’s exercise of its well-
established power to regulate in response to scientific,
mathematical, and medical advances.12

12
In exercising the caution the Supreme Court demands when
analyzing claims of fundamental rights, see Glucksberg, 521 U.S. at
720, we note a more plausible explanation for the limited efficacy
regulation—the government was not previously able to systematically
regulate effectively for efficacy: “The history of the effectiveness
requirement in drug regulation is inextricably linked to the advent of
the randomized, controlled clinical trial as the cornerstone of medical
research . . . , [which] would not become widely recognized until the
twentieth century.” Jennifer Kulynych, Will FDA Relinquish the
“Gold Standard” for New Drug Approval? Redefining “Substantial
Evidence” in the FDA Modernization Act of 1997, 54 FOOD & DRUG
L.J. 127, 131 (1999) (footnotes omitted). In fact, “World War II
ushered in the era of the modern clinical trial, when the U.S. military
undertook large-scale, systematic testing of tuberculosis remedies and
antimalarial agents on groups of enlisted soldiers.” Id. Ironically, the
Alliance would use the recent development of tools such as modern
clinical trials to bolster its claim of exemption from regulation made
possible by these very tools.
It was not just advances in statistics and clinical trials,
however, that improved governments’ ability to regulate access to
drugs. The ability of scientists to “detect, identify, and understand”
the components of various drugs has contributed to “new regulatory
 22

True, a lack of government interference throughout history
might be some evidence that a right is deeply rooted. But
standing alone, it cannot be enough. If it were, it would be easy
to employ such a premise to support sweeping claims of
fundamental rights. For example, one might argue that, because
Congress did not significantly regulate marijuana until 1937,
relatively late in the constitutional day, see Gonzales v. Raich,
545 U.S. 1, 11 (2005), there must be a tradition of protecting
marijuana use. Because Congress did not regulate narcotics
until 1866 when it heavily taxed opium, a drug created long
before our Nation’s founding, see United States v. Moore, 486
F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J.,
dissenting), it must be that individuals have a right to acquire
and use narcotics free from regulation. Or because speed limits
are a recent innovation, we have a fundamental right to drive as
fast as we deem fit. But this is most certainly not the law. A
prior lack of regulation suggests that we must exercise care in
evaluating the untested assertion of a constitutional right to be
free from new regulation. But the lack of prior governmental
regulation of an activity tells us little about whether the activity
merits constitutional protection: “The fact that powers long
have been unexercised well may call for close scrutiny as to
whether they exist; but if granted, they are not lost by being
allowed to lie dormant, any more than nonexistent powers can
be prescripted by an unchallenged exercise.” See United States

approaches [that] would not have been feasible and could never have
occurred” without these scientific advances. Peter Barton Hutt, The
Importance of Analytical Chemistry to Food and Drug Regulation, 38
VAND. L. REV. 479, 487 (1985). Further, the need for efficacy
regulation became more pressing “[a]fter World War II [as] the
number of drugs available, the range of diseases and conditions
amenable to drug therapy, and the power of drugs all increased
dramatically.” PETER TEMIN, TAKING YOUR MEDICINE: DRUG
REGULATION IN THE UNITED STATES 5 (1980).
 23

v. Morton Salt Co., 338 U.S. 632, 647 (1950). Indeed, creating
constitutional rights to be free from regulation based solely upon
a prior lack of regulation would undermine much of the modern
administrative state, which, like drug regulation, has increased
in scope as changing conditions have warranted.

B.

The Alliance next turns to several common law doctrines,
arguing that barring access to experimental drugs for terminally
ill patients is “inconsistent with the way that our legal tradition
treats persons in all other life-threatening situations.”
Appellants’ Br. at 31. Specifically, the Alliance argues that
three doctrines—(1) the doctrine of necessity; (2) the tort of
intentional interference with rescue; and (3) the right to self-
defense—each support the recognition of a right to self-
preservation. Such a right to self-preservation, the Alliance
believes, would permit “persons in mortal peril . . . to try to save
their own lives, even if the chosen means would otherwise be
illegal or involve enormous risks.” Id. at 32. Specifically, in
this case, the Alliance believes that a right to self-preservation
would give the terminally ill a constitutionally protected right of
access to experimental drugs.13

13
The Supreme Court in Glucksberg specifically disapproved
of recognizing new fundamental rights solely based upon “abstract
concepts of personal autonomy.” Glucksberg, 521 U.S. at 725. The
FDA argues that the Alliance’s effort to create a new fundamental
right based upon these three doctrines amounts to precisely this type
of reasoning forbidden by Glucksberg, that is, amounts to the creation
of a right based solely upon abstract concepts of liberty. The Alliance
insists that “reasoning by analogy, and a search for broader principles,
are the only available tools” in cases where there is a “tradition of non-
regulation.” Reply Br. at 3. In those circumstances, the Alliance
argues, “there often will be no common law cases precisely on point
 24

Looking first to the Alliance’s necessity argument, the
Alliance invokes the common law doctrine, which
“‘traditionally covered the situation where physical forces
beyond the actor’s control rendered illegal conduct the lesser of
two evils.’” United States v. Oakland Cannabis Buyers’
Cooperative, 532 U.S. 483, 490 (2001) (quoting United States
v. Bailey, 444 U.S. 394, 410 (1980)). The Alliance offers,
however, little detail about how necessity would apply to its
case. See Appellants’ Br. at 37. (E.g., would terminally ill
patients have a right to force drug companies to provide them
with experimental drugs?) Nonetheless, the Supreme Court’s
analysis of the common law doctrine of necessity in Oakland
leaves little room for the Alliance’s argument that common law
necessity could justify overriding the Food, Drug, and Cosmetic
Act.

In Oakland, a group of patients seeking access to marijuana
for medicinal purposes argued that “because necessity was a
defense at common law, medical necessity should be read into
the Controlled Substances Act.” Oakland, 532 U.S. at 490.14

simply because the common law never confronted the precise
problem.” Id. We need not address this FDA argument because none
of the common law doctrines upon which the Alliance relies supports
its proposed right.
14
As an initial matter, the Oakland Court noted that “it is an
open question whether federal courts ever have authority to recognize
a necessity defense not provided by statute.” Id. (emphasis added).
“Even at common law, the defense of necessity was somewhat
controversial. And under our constitutional system, in which federal
crimes are defined by statute rather than by common law, it is
especially so.” Id. (internal citations omitted). The Court did “not
decide, however, whether necessity can ever be a defense when the
federal statute does not expressly provide for it,” Oakland, 532 U.S.
at 491, because, as in this case, the federal statute at issue in Oakland
 25

The Supreme Court rejected that argument because “[u]nder any
conception of legal necessity, one principle is clear: The defense
cannot succeed when the legislature itself has made a
determination of values,” id. at 491 (quotation marks omitted).
Although the Court limited its analysis to the statutory issue and
did not address the defendant’s constitutional arguments, see id.
at 494, the learning of Oakland is clear. Congress may limit or
even eliminate a necessity defense that might otherwise be
available. That is precisely what the FDCA has done. Congress
has prohibited general access to experimental drugs, see 21
U.S.C. § 355(a), and has prescribed in detail how experimental
drugs may be studied and used by the scientific and medical
communities, see id. § 355(i). Given the Supreme Court’s
conclusion that the common law defense of necessity remains
controversial and cannot override a value judgment already
determined by the legislature, the common law doctrine of
necessity provides little support to the Alliance’s proposed right.

The Alliance next invokes the tort of intentional
interference with lifesaving efforts, which the Restatement of
Torts defines as “intentionally prevent[ing] a third person from
giving to another aid necessary to his bodily security.”
RESTATEMENT (FIRST) OF TORTS § 326 (emphasis added). But
that is not this case. The Alliance seeks access to drugs that are
experimental and have not been shown to be safe, let alone
effective at (or “necessary” for) prolonging life.15 Indeed, the

had specifically reached the value judgment the proponents of an
implied necessity defense sought to override.
15
The lynchpin of the dissent’s argument that preventing
access to experimental drugs implicates a right to preserve one’s own
life is that we have confused “what is necessary with what is
sufficient.” Dissent at 3, 9. Because terminally ill patients have no
other approved treatment options, so the argument goes, any drug
 26

Alliance concedes that taking experimental drugs can “involve
enormous risks.” Appellants’ Br. at 32. In essence, the Alliance
insists on a constitutional right to assume any level of risk. It is
difficult to see how a tort addressing interference with providing
“necessary” aid would guarantee a constitutional right to
override the collective judgment of the scientific and medical
communities expressed through the FDA’s clinical testing
process. Thus, we cannot agree that the tort of intentional
interference with rescue evidences a right of access to
experimental drugs.

Finally, the Alliance looks to traditional self-defense
principles to support its proposed constitutional right. The
common law doctrine of self-defense provides that “[o]ne who
is not the aggressor . . . is justified in using a reasonable amount

having passed Phase I, no matter the remaining unexplored risk, is
“necessary” for prolonging a patient’s life. But the dissent ignores the
fact that when these treatment decisions are being made, the safety and
efficacy records of experimental drugs are not fully known. We thus
cannot know until after the clinical testing process has been completed
that these drugs are in fact necessary. This argument also defies
reality as the great majority of experimental drugs ultimately provide
no benefit, and we fail to see how an ineffective and unsafe drug can
be classified as necessary. See, e.g., Peter D. Jacobson & Wendy E.
Parmet, A New Era of Unapproved Drugs: The Case of Abigail
Alliance v. von Eschenbach, 297 JAMA 205, 206 (2007) (noting that
only five percent of all cancer drugs beginning clinical trials are
ultimately approved for use and that less than a third that pass Phase
I advance from Phase II to Phase III). The dissent’s position is further
compromised by the fact that the Supreme Court rejected a similar
argument in a statutory challenge to the FDCA because “[f]or the
terminally ill, as for anyone else, a drug is unsafe if its potential for
inflicting death or physical injury is not offset by the possibility of
therapeutic benefit.” United States v. Rutherford, 442 U.S. 544,
555-56 (1979).
 27

of force against his adversary when he reasonably believes (a)
that he is in immediate danger of unlawful bodily harm from his
adversary and (b) that the use of such force is necessary to avoid
this danger.” 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL
LAW § 10.4 (2d ed. 2003). Self-defense typically arises when a
victim is being attacked by an aggressor and uses reasonable
force to overcome immediate danger. The Alliance argues that
self-defense permits victims to assume two types of risk: (1) the
risk that the victim will kill the attacker; and (2) the risk that
“[f]ighting back may dramatically increase the . . . harm” to the
victim. Appellants’ Br. at 35-36. So, the argument goes, if
victims of crimes are allowed to assume these risks in defending
their lives, terminally ill patients should also be allowed to
assume the risk that an experimental drug may hasten their
deaths.

That self-defense principles should be applied in the
medical context is evidenced, the Alliance argues, by the
Supreme Court’s abortion jurisprudence. The Alliance does not
look to the “right of personal privacy” addressed in Roe v.
Wade, 410 U.S. 113, 152 (1973). Instead, the Alliance argues
that Roe “recognized another, entirely separate right to abortion:
a woman’s right to abort a fetus at any stage of a pregnancy if
doing so is necessary to preserve her life or health.” Appellants’
Br. at 39 (emphasis in original).16 “That right,” the Alliance
argues, “is grounded in traditional self-defense principles rather
than privacy . . . .” Id. Applying that concept here, the Alliance
argues that because its terminally ill members are in immediate
danger of harm from cancer, they can use whatever medical

16
See also Casey, 505 U.S. at 879 (reaffirming exception);
Roe, 410 U.S. at 173 (Rehnquist, J., dissenting) (“If the Texas statute
were to prohibit an abortion even where the mother’s life is in
jeopardy, I have little doubt that such a statute would lack a rational
relation to a valid state objective . . . .”).
 28

means are necessary to defend themselves. Thus, they argue,
even if a medical treatment might otherwise be prohibited by
law, the doctrine of self-defense justifies access to that
treatment, just as self-defense justifies an assault victim using
physical force otherwise prohibited by law.

This analogy also fails because this case is not about using
reasonable force to defend oneself (as in most cases involving
self-defense), nor is it about access to life-saving medical
treatment. This case is about whether there is a constitutional
right to assume, in the Alliance’s own words, “enormous risks,”
Appellants’ Br. at 32, in pursuit of potentially life-saving drugs.
Unlike the cases in which the doctrine of self-defense might
properly be invoked, this case involves risk from drugs with no
proven therapeutic effect, which at a minimum separates this
example from the abortion “life of the mother” exception.
Because terminally ill patients cannot fairly be characterized as
using reasonable force to defend themselves when they take
unproven and possibly unsafe drugs, the Alliance’s desire that
the terminally ill be free to assume the risk of experimental
drugs cannot draw support from the doctrine of self-defense.17

17
To be sure, we do not suggest that the law can never strike
the balance between access to experimental drugs and risk that the
Alliance suggests. We limit our analysis to whether the Constitution
demands the balance they desire. The Alliance can, of course,
advocate its position vigorously before Congress and the FDA, and
convince our Nation’s democratic branches that the values the
Alliance favors should be protected. In fact, within the last year, the
political branches have responded to the concerns of the Alliance and
others. The FDA recently issued a notice of proposed rulemaking
that:

propos[ed] to amend its regulations on access to
investigational new drugs for the treatment of
 29

III.

Although it has not addressed the precise constitutional
argument urged by the Alliance, we find it highly significant that
the Supreme Court has rejected several similar challenges to the
FDCA and related laws brought on statutory grounds. See, e.g.,
Raich, 545 U.S. at 28 (“the dispensing of new drugs, even when
doctors approve their use, must await federal approval”); United
States v. Rutherford, 442 U.S. 544, 552 (1979) (“we are
persuaded by the legislative history and consistent
administrative interpretation of the [FDCA] that no implicit
exemption for drugs used by the terminally ill is necessary to
attain congressional objectives”); cf. Oakland, 532 U.S. at 490
(with respect to whether there is an implied “medical necessity”
exemption to prosecution for marijuana use under the Controlled
Substances Act, generally speaking, “[w]hether, as a policy
matter, an exemption should be created is a question for
legislative judgment, not judicial inference”) (quotation marks
omitted). And other courts have rejected arguments that the

patients. The proposed rule would clarify existing
regulations and add new types of expanded access for
treatment use. Under the proposal, expanded access
to investigational drugs for treatment use would be
available to individual patients, including in
emergencies; intermediate-size patient populations;
and larger populations under a treatment protocol or
treatment investigational new drug application (IND).
The proposed rule is intended to improve access to
investigational drugs for patients with serious or
immediately life-threatening diseases or conditions,
who lack other therapeutic options and who may
benefit from such therapies.

Expanded Access to Investigational Drugs, 71 Fed. Reg. 75,147-01,
75,147 (Dec. 14, 2006).
 30

Constitution provides an affirmative right of access to particular
medical treatments reasonably prohibited by the Government.18

18
No circuit court has acceded to an affirmative access claim.
See, e.g., Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993)
(“most federal courts have held that a patient does not have a
constitutional right to obtain a particular type of treatment or to obtain
treatment from a particular provider if the government has reasonably
prohibited that type of treatment or provider”); N.Y. State
Ophthalmological Soc’y v. Bowen, 854 F.2d 1379, 1389 (D.C. Cir.
1988) (“We disagree that the constitutional right to privacy
comprehensively protects all choices made by patients and their
physicians or subjects to ‘strict scrutiny’ all government interference
with choice of medical treatment. There is no basis under current
privacy case law for extending such stringent protection to every
decision bearing, however indirectly, on a person’s health and
physical well-being.”), cert. denied, 490 U.S. 1098 (1989); Carnohan
v. United States, 616 F.2d 1120, 1122 (9th Cir. 1980) (“Constitutional
rights of privacy and personal liberty do not give individuals the right
to obtain [the cancer drug] laetrile free of the lawful exercise of
government police power.”); Rutherford v. United States, 616 F.2d
455, 457 (10th Cir. 1980) (“[T]he patient[’s] . . . selection of a
particular treatment, or at least a medication, is within the area of
governmental interest in protecting public health. The premarketing
requirement of the [FDCA], 21 U.S.C. § 355, is an exercise of
Congressional authority to limit the patient’s choice of medication.
This is clear under the [Supreme Court’s] decisions . . . .”), on remand
from 442 U.S. 544 (1979), cert. denied, 449 U.S. 937 (1980); see also
Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d 639, 645 n.10 (3d Cir.
1995); United States v. Burzynski Cancer Research Inst., 819 F.2d
1301, 1313-14 (5th Cir. 1987); cf. Lambert v. Yellowley, 272 U.S. 581,
588, 590, 596-97 (1926) (where Congress determined, in
implementing Prohibition, that “practicing physicians differ about the
value of malt, vinous and spirituous liquors for medicinal purposes,
[and] that the preponderating opinion is against their use for such
purposes,” the Court rejected a physician’s claim of a constitutional
right to “use . . . such medicines and medical treatment as in his
 31

In keeping with those decisions, we conclude that the
Alliance has not provided evidence of a right to procure and use
experimental drugs that is deeply rooted in our Nation’s history
and traditions. To the contrary, our Nation’s history evidences
increasing regulation of drugs as both the ability of government
to address these risks has increased and the risks associated with
drugs have become apparent. Similarly, our legal traditions of
allowing a necessity defense, prohibiting intentional interference
with rescue, and recognizing a 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.19

opinion are best calculated to effect [his patients’] cure and establish
their health,” holding that “there is no right to practice medicine which
is not subordinate . . . to the power of Congress to make laws
necessary and proper . . . . High medical authority being in conflict as
to the medicinal value of spirituous and vinous liquors taken as a
beverage, it would, indeed, be strange if Congress lacked the power to
determine that the necessities of the liquor problem require a limitation
of permissible prescriptions . . . .”); Watson v. Maryland, 218 U.S.
173, 176 (1910) (“It is too well settled to require discussion at this day
that the police power of the States extends to the regulation of certain
trades and callings, particularly those which closely concern the public
health. There is perhaps no profession more properly open to such
regulation than that which embraces the practitioners of medicine.”).
19
As there exists no deeply rooted right, we need not examine
whether a right of access to experimental drugs is “‘implicit in the
concept of ordered liberty,’ such that ‘neither liberty nor justice would
exist if they were sacrificed.’” Glucksberg, 521 U.S. at 720-21
(quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)). While
we need not and do not address all of the Alliance’s arguments
regarding whether their proposed right is implicit in our Nation’s
system of ordered liberty, we note a crucial difference between this
case and one of the cases relied upon by the Alliance in making that
 32

IV.

Because the Alliance’s claimed right is not fundamental,
the Alliance’s claim of a right of access to experimental drugs
is subject only to rational basis scrutiny. See Glucksberg, 521
U.S. at 722 (noting that “a challenged state action [must]
implicate a fundamental right” to avoid rational basis review).
The rational basis test requires that the Alliance prove that the
government’s restrictions bear no rational relationship to a
legitimate state interest. See, e.g., Harrah Indep. Sch. Dist. v.
Martin, 440 U.S. 194, 198 (1979); Glucksberg, 521 U.S. at 735.
The challenged policy “need not be in every respect logically
consistent with its aims to be constitutional. It is enough that
there is an evil at hand for correction, and that it might be

argument, Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261
(1990). In Cruzan, the Supreme Court “assume[d] that the United
States Constitution would grant a competent person a constitutionally
protected right to refuse lifesaving hydration and nutrition,” although
the Court indicated that “the dramatic consequences involved in [a
particular] refusal of [life-sustaining] treatment would inform the
inquiry as to whether the deprivation of that interest is constitutionally
permissible.” Id. at 279. Looking to Cruzan, the Alliance argues that
“[i]f a patient has a fundamental right to medical self-determination
that gives them the right to starve themselves to death, then surely they
have a right to choose to fight for their lives even if that means taking
a drug that has not yet met the FDA’s full approval standards.”
Appellants’ Br. at 27. Cruzan’s assumption that there is a right to
refuse lifesaving treatment in some circumstances was predicated upon
“the common-law rule that forced medication was a battery[] and the
long legal tradition protecting the decision to refuse unwanted medical
treatment.” Glucksberg, 521 U.S. at 725 (discussing Cruzan); see also
Cruzan, 497 U.S. at 269. But a tradition protecting individual freedom
from life-saving, but forced, medical treatment does not evidence a
constitutional tradition of providing affirmative access to a potentially
harmful, and even fatal, commercial good.
 33

thought that the particular legislative measure was a rational
way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348
U.S. 483, 487-88 (1955).20

The Alliance acknowledges the risk inherent in taking
experimental drugs. See Am. Compl. ¶ 19 (“Terminally ill
patients are typically willing to assume risks . . . .”). The
Alliance would rather that individual patients make decisions
about this risk than have the FDA decide which drugs are safe
enough for limited access to the terminally ill. The FDA
counters that “[w]ithout a requirement of FDA approval, patients
could be exposed to unreasonable risks from investigational
drugs that may be neither safe nor effective.” Appellees’ Br. at
55-56.

20
We are mindful of the fact that this case is before us
pursuant to the FDA’s motion to dismiss, brought under Federal Rule
of Civil Procedure 12(b)(6). The Seventh Circuit has noted some
tension between the Rule 12(b)(6) standard and rational basis review.
See Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir.
1992) (“The rational basis standard requires the government to win if
any set of facts reasonably may be conceived to justify its
classification; the Rule 12(b)(6) standard requires the plaintiff to
prevail if relief could be granted under any set of facts that could be
proved consistent with the allegations. The rational basis standard, of
course, cannot defeat the plaintiff’s benefit of the broad Rule 12(b)(6)
standard.”) (quotation marks and citations omitted). In this case,
however, we need not worry about the outer realm of Rule 12(b)(6)
protection because, as we explain below, the Alliance’s pleadings
themselves make our rational basis determination straightforward. Cf.
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (noting that it “is
possible for a plaintiff to plead too much: that is, to plead himself out
of court by alleging facts that render success on the merits impossible”
(quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C.
Cir. 2000))).
 34

Applying the rational basis standard to the Alliance’s
complaint, we cannot say that the government’s interest does not
bear a rational relation to a legitimate state interest. That
conclusion is compelled by the Supreme Court’s decision in
United States v. Rutherford, 442 U.S. 544 (1979). In that case,
terminally ill patients sought to prevent the FDA from
prohibiting access to the drug laetrile, even though the drug had
not been approved for public use. In rejecting a challenge by
terminally ill patients claiming that the FDCA’s safety
requirement did not apply to them, the Supreme Court held that
“[f]or the terminally ill, as for anyone else, a drug is unsafe if its
potential for inflicting death or physical injury is not offset by
the possibility of therapeutic benefit.” Id. at 555-56; see also id.
at 558 (noting that history has demonstrated that numerous
“resourceful entrepreneurs” might try to take advantage of an
unregulated market, which “suggest[s] why Congress could
reasonably have determined to protect the terminally ill, no less
than other patients, from the vast range of self-styled panaceas
that inventive minds can devise”).

Although terminally ill patients desperately need curative
treatments, as Rutherford holds, their deaths can certainly be
hastened by the use of a potentially toxic drug with no proven
therapeutic benefit. Thus, we must conclude that, prior to
distribution of a drug outside of controlled studies, the
Government has a rational basis for ensuring that there is a
scientifically and medically acceptable level of knowledge about
the risks and benefits of such a drug. We therefore hold that the
FDA’s policy of limiting access to investigational drugs is
rationally related to the legitimate state interest of protecting
patients, including the terminally ill, from potentially unsafe
drugs with unknown therapeutic effects.

Although in the Alliance’s view the FDA has unjustly erred
on the side of safety in balancing the risks and benefits of
 35

experimental drugs, this is not to say that the FDA’s balance can
never be changed. The Alliance’s arguments about morality,
quality of life, and acceptable levels of medical risk are certainly
ones that can be aired in the democratic branches, without
injecting the courts into unknown questions of science and
medicine. Our Nation’s history and traditions have consistently
demonstrated that the democratic branches are better suited to
decide the proper balance between the uncertain risks and
benefits of medical technology, and are entitled to deference in
doing so. As the Supreme Court has held:

We must assume that, when the statute in question
was passed, the legislature . . . was not unaware of
these opposing theories, and was compelled, of
necessity, to choose between them. It was not
compelled to commit a matter involving the
public health and safety to the final decision of a
court or jury. It is no part of the function of a
court or a jury to determine which one of two
modes was likely to be the most effective for the
protection of the public against disease.

Jacobson v. Massachusetts, 197 U.S. 11, 30 (1905); see also
Gonzales v. Carhart, 127 S. Ct. 1610, 1636 (2007) (“The Court
has given state and federal legislatures wide discretion to pass
legislation in areas where there is medical and scientific
uncertainty.”); cf. Greenwood v. United States, 350 U.S. 366,
375-76 (1956) (“The only certain thing that can be said about
the present state of knowledge and therapy . . . is that science
has not reached finality of judgment . . . . Certainly, denial of
constitutional power . . . to Congress in dealing with a situation
like this ought not to rest on dogmatic adherence to one view or
another on controversial psychiatric issues.”). Consistent with
that precedent, our holding today ensures that this debate among
the Alliance, the FDA, the scientific and medical communities,
 36

and the public may continue through the democratic process.
See Glucksberg, 521 U.S. at 735.

V.

For the foregoing reasons, the judgment of the district court
is affirmed.

So ordered.
 ROGERS, Circuit Judge, with whom Chief Judge GINSBURG
joins, dissenting: Today, the court rejects the claim that
terminally ill patients who have exhausted all government-
approved treatment options have a fundamental right to access
investigational new drugs. The court’s opinion reflects a flawed
conception of the right claimed by the Abigail Alliance for
Better Access to Developmental Drugs and a stunning
misunderstanding of the stakes. The court shifts the inquiry
required by Washington v. Glucksberg, 521 U.S. 702 (1997), by
changing the nature of the right, by conflating the right with the
deprivation, and by prematurely advancing countervailing
government interests. The court fails to come to grips with the
Nation’s history and traditions, which reflect deep respect and
protection for the right to preserve life, a corollary to the right
to life enshrined in the Constitution. The court confuses this
liberty interest with the manner in which the Alliance alleges
that the liberty has been deprived, namely by denying terminally
ill patients access to investigational medications under the
narrow conditions described by the Alliance. The court
conflates the inquiry as to whether a fundamental right exists at
all with whether the government has demonstrated a compelling
interest, when strictly scrutinized, rendering its restrictive policy
constitutional.

These missteps lead the court to rely upon how rights and
liberties have been limited and restricted — addressing
regulations to prevent fraud in the sale of misbranded and
adulterated medications or safety restrictions applicable to all
medicines for any palliative purpose — which says little about
the historic importance of the underlying right of a person to
save her own life. Likewise, in its treatment of the common law
doctrines of necessity, interference with rescue, and self defense,
the court points to evolved limitations on those doctrines while
ignoring the core concerns that animate them, namely the special
importance of life and attempts to preserve it. That the ultimate
protection of such varying attempts to save life is cabined by the
 2

precedents — regarding what constitutes “necessity,” the related
“necessity” of any aid being given to a third party, and the
“reasonable” and “necessary” limitations on any force used in
self-defense — does not suggest the absence of an underlying
right to attempt to protect life, but rather the recognition of
competing governmental interests that in various circumstances
justify the deprivation of or a limitation upon the right.

The common law doctrines remain good evidence of a
history and tradition of protecting life and attempts to preserve
life as a deep-seated personal right. That the right may be and
has been denied in the face of compelling governmental interests
is no reason for conflating the two stages of the analysis and
looking only to the results of past cases in order to avoid the
analysis prescribed by the Supreme Court in Glucksberg, 521
U.S. at 720-21. Contrary to today’s view of the court and the
Federal Drug Administration (“FDA”), nothing in the prior
opinion of the court would give “total weight” to the interests of
the terminal patients or deny the FDA the ability to put its
competing governmental interests into the balance. The court
was explicit on this point, requiring precisely such weighing and
proof of the proposed government concerns, rather than merely
accepting, under the rubric of rational basis scrutiny, any
assertions the FDA chooses to offer. See Abigail Alliance for
Better Access to Developmental Drugs v. von Eschenbach, 445
F.3d 470, 486 (D.C. Cir. 2006) (“Abigail Alliance I”) (vacated
upon grant of rehearing en banc).

In the end, it is startling that the oft-limited rights to marry,
to fornicate, to have children, to control the education and
upbringing of children, to perform varied sexual acts in private,
and to control one’s own body even if it results in one’s own
death or the death of a fetus have all been deemed fundamental
rights covered, although not always protected, by the Due
Process Clause, but the right to try to save one’s life is left out
 3

in the cold despite its textual anchor in the right to life. This
alone is reason the court should pause about refusing to put the
FDA to its proof when it denies terminal patients with no
alternative therapy the only option they have left, regardless of
whether that option may be a long-shot with high risks. The
court is on even weaker footing when it relies upon the risks
entailed in medical procedures to wrest life-and-death decisions
that once were vested in patients and their physicians. The court
commits a logical error of dramatic consequence by concluding
that the investigational drugs are somehow not “necessary.” Op.
at 25 & n.15; accord id. at 26. While the potential cures may
not prove sufficient to save the life of a terminally ill patient,
they are surely necessary if there is to be any possibility of
preserving her life.

It bears outlining the history and common law basis for the
Alliance’s claim in order to demonstrate, once again, that the
history and traditions of this Nation support the right of a
terminal patient, and not the government, to make this
fundamentally personal choice involving her own life. Because
judicial precedents and the historical record require strict
scrutiny before upsetting rights of this magnitude, the FDA must
demonstrate a compelling governmental interest before its
policy restricting access can survive. Accordingly, I would
remand the case to the district court to make the initial
determination as to whether FDA has met its burden, and I
respectfully dissent.

I.

The Fifth Amendment of the Constitution proscribes the
“depriv[ation] of life, liberty, or property.” U.S. CONST. amend.
V. The Alliance claims a corollary to the right to life itself,
namely the right to attempt to preserve it. As alleged by the
Alliance, this right is deprived without due process of law when
 4

the FDA makes it practically impossible for Alliance members
for whom conventional treatments have failed to access
investigational new drugs that have been approved for
substantial human testing. Under Glucksberg, 521 U.S. at 720-
21, a substantive due process right qualifies as fundamental if it
is both “‘deeply rooted in this Nation’s history and tradition,’”
id. at 721 (quoting Moore v. City of E. Cleveland, 431 U.S. 494,
503 (1977) (plurality opinion)), and “‘implicit in the concept of
ordered liberty,’” id. (quoting Palko v. Connecticut, 302 U.S.
319, 325 (1937)).1 If the Alliance has correctly alleged a
fundamental right, then the FDA policy can survive only upon
proof of a compelling government interest that overcomes the
liberty interest.

A.
The Glucksberg analysis begins with a “‘careful
description’ of the asserted fundamental liberty interest.” 521
U.S. at 721-23. As the court’s opinion in this case demonstrates,
the description of the right is of crucial importance — too broad
and a right becomes all-encompassing and impossible to
evaluate; too narrow and a right appears trivial. See Abigail
Alliance I, 445 F.3d at 477. The court asserts that “[t]his case is
about whether there is a constitutional right to assume . . .
‘enormous risks’ in pursuit of potentially life-saving drugs.”
Op. at 28 (emphasis in original) (citation omitted). This
description can be characterized as “careful” only if the
objective of Glucksberg analysis is to produce abstractions that

1
The Glucksberg framework arose from a situation involving
a non-literal liberty interest. Although, as described below, the right
to act to preserve one’s own life passes the test laid down in that case,
the healthy skepticism that Glucksberg prescribed for new-fangled
non-literal liberty interests may be unduly restrictive as applied to a
claim with a firm textual anchor in the right to life expressly protected
by the Fifth Amendment to the Constitution.
 5

shield a court from acknowledging the rights underlying a
party’s claims. As the court notes, fundamental rights cannot be
“solely based upon ‘abstract concepts of personal autonomy.’”
Op. at 23 n.13 (quoting Glucksberg, 521 U.S. at 725). However,
were it impermissible to draw any inferences from a broader
right to a narrower right, nearly all of the Supreme Court’s
substantive due process case law would be out of bounds. See,
e.g., Moore, 431 U.S. at 503 (extrapolating specific right to
determine extended family living arrangements from broader
constitutional protection for “the sanctity of the family”); Roe v.
Wade, 410 U.S. 113 (1973) (identifying specific right to
terminate a pregnancy from broader right to privacy); Griswold
v. Connecticut, 381 U.S. 479, 484-86 (1965) (inferring specific
right to use contraception from general right to be free from
intrusion into “sacred precincts of marital bedrooms”). In any
event, the Alliance’s liberty claims are not grounded in the
abstract notion of personal autonomy but rather in the specific
right to act to save one’s own life.

The court fundamentally misunderstands the right claimed
by the Alliance and trivially casts it as a function of the
regulatory scheme. See Op. at 14 n.6. But the Alliance should
not be penalized for anticipating a justification for infringing the
right that might survive strict scrutiny. Applying the court’s
reasoning today, had “Jane Roe” been prescient enough to claim
a right to abort a pre-viable fetus by a procedure that is
demonstrably safer than all other alternatives, cf. Gonzales v.
Carhart, 127 S. Ct. 1610, 1638 (2007), she would have failed to
show a fundamental right to an abortion.2 Again, the claimed

2
Similarly, the Tenth Circuit has held that although parents
have a fundamental constitutional right to direct the education and
upbringing of their children, this right does not “allow parents to
dictate that their children will attend public school for only part of the
school day.” Swanson ex rel. Swanson v. Guthrie Indep. Sch. Dist.
 6

fundamental right is to attempt to preserve one’s life; whether
the risks associated with doing so justify restraining that right is
properly considered only after the right is deemed fundamental.
Under Glucksberg, the court’s analysis should begin with an
assessment of whether the right to attempt to preserve life can be
found in the Nation’s history and tradition. See Abigail Alliance
I, 445 F.3d at 479. A review of this history demonstrates that
this Nation has long entrusted in individuals those
fundamentally personal medical decisions that lie at the core of
personal autonomy, self-determination, and self-defense.

1. The heritage of this right predates the Founding. Samuel
Adams referred to “the duty of self preservation” as “the first
law of nature.” Samuel Adams, The Rights of the Colonists:
Report of the Committee of Correspondence to the Boston Town
Meeting, 7 OLD SOUTH LEAFLETS 417 (No. 173) (Burt Franklin
1970) (1772). The common law’s eminent commentator,
William Blackstone, wrote of three “principal or primary
articles” historically comprising “the rights of all mankind.”
First among these was “[t]he right of personal security . . . in a
person’s legal and uninterrupted enjoyment of his life, his limbs,
his body, [and] his health.” WILLIAM BLACKSTONE, 1
COMMENTARIES *129. Blackstone described the guarantee of
“[t]he preservation of a man’s health from such practices as may
prejudice or annoy it.” Id. at *134. This right included the right
to self-defense and the right to self-preservation. “For whatever
is done by a man to save either life or member, is looked upon

No. I-L, 135 F.3d 694, 702 (10th Cir. 1998). By the court’s reasoning,
if parents had come to court claiming a fundamental right to educate
their children but acknowledging that if they sent their children to
public school, they could do so only full-time, the fundamental right
never would have been recognized. But see Meyer v. Nebraska, 262
U.S. 390 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).
 7

as done upon the highest necessity and compulsion.” Id. at
*130.

This principle is of early vintage, for “Anglo-American law
starts with the premise of thorough-going self determination.”
Natanson v. Kline, 350 P.2d 1093, 1104 (Kan. 1960). Long
before regulation of the efficacy of medications was
contemplated by the federal government, courts recognized with
“universal acquiescence” that “the free citizen’s first and
greatest right, which underlies all others,” is “the right to the
inviolability of his person, in other words, his right to himself.”
Pratt v. Davis, 118 Ill. App. 161, 166 (1905), aff’d, 79 N.E. 562
(Ill. 1906). So too, this court has recognized “the concept,
fundamental in American jurisprudence, that ‘[e]very human
being of adult years and sound mind has a right to determine
what shall be done with his own body.’” Canterbury v. Spence,
464 F.2d 772, 780 (D.C. Cir. 1972) (alteration in original)
(quoting Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93
(1914) (Cardozo, J.)).

2. This historical entitlement recognized in the legal
tradition of this Nation is reflected in rights recognized at
common law that are retained by an individual. Most notably,
the right of self-defense enforces the right of a person facing
death to take reasonable steps to protect her own life. Although
this right is not unqualified, self-defense has been described as
“an inherent right of man, older than states or Constitutions.”
People v. Pignatoro, 136 N.Y.S. 155, 160 (Magis. Ct. 1911).
The privilege extends, of course, to repelling the attacks of
aggressors, see, e.g., Brown v. United States, 256 U.S. 335, 343-
44 (1921); cf. Montana v. Egelhoff, 518 U.S. 37, 56 (1996)
(plurality opinion), but also protects incursions into the property
of others, see, e.g., Ploof v. Putnam, 71 A. 188, 189 (Vt. 1908)
(“This doctrine of necessity applies with special force to the
preservation of human life. . . . One may sacrifice the personal
 8

property of another to save his life or the lives of his fellows.”
(citation omitted)); Mouse’s Case, 12 Co. Rep. 63, 77 Eng. Rep.
1341, 1342 (K.B. 1609) (deciding that it is lawful to throw
overboard property of another for safety of lives of passengers);
RESTATEMENT OF TORTS § 197 (1934). See generally George C.
Christie, The Defense of Necessity Considered from the Legal
and Moral Points of View, 48 DUKE L.J. 975 (1996). Although
the concept of self-defense is most often thought of in terms of
the response to an assault by another human being, its premise
compels the same response in the face of other forms of
aggression against life and limb, whether the aggressor be an
animal3 or a diseased cell within one’s body. There is,
accordingly, no reason to think that the efforts of Alliance
members to repel their terminal diseases do not implicate this
concept.

Aside from asserting that this case is not about efforts to
preserve one’s life, but rather the “right to assume any level of
risk,” the court further avoids the doctrines of self-defense and
necessity by asserting that Congress can override the common
law. See Op. at 26. This is true but irrelevant. It was also true
in Cruzan v. Director, Missouri Department of Health, 497 U.S.
261 (1990), in which the Supreme Court discussed the
fundamental right to refuse life-sustaining medical treatment, id.
at 278. When the Court recognized that the common law tort of
battery supported the fundamental right to refuse medical
treatment, id. at 269, it did not constitutionalize the tort of
battery. Similarly, recognizing that necessity has historically
been protected does not constitutionalize the doctrine of
necessity. Yet the court resists the implications of the historical
protection for actions prompted by necessity out of an

3
A person may assert self-defense rights against animals.
See, e.g., People v. Lee, 32 Cal. Rptr. 3d 745, 754-55 (Ct. App. 2005);
Credit v. Brown, 10 Johns. 365 (N.Y. Sup. Ct. 1813).
 9

unwarranted fear that acknowledging the historical record will
constitutionalize the common law. See Op. at 22-23, 26. In so
doing, it forgets the second part of the Glucksberg inquiry. A
tradition of protection does not alone establish a fundamental
right. The subsequent determination of whether a right is
“implicit in the concept of ordered liberty” invalidates the
court’s fears of a slippery slope.

The common law also recognized the right of protection
against interference with rescue. This right is infrequently
invoked, but as early as 1889, it was acknowledged by the
highest court of the State of Maryland, which explained that
even prolongation of a fading life was not to be obstructed:

Surely the law does not authorize the husband to say to
his wife: “You shall die of the cancer; you cannot be
cured, and a surgical operation affording only
temporary relief, will result in useless expense.” The
husband had no power to withhold from his wife the
medical assistance which her case might require.

State v. Housekeeper, 16 A. 382, 383-84 (Md. 1889). The
Restatement of Torts, published in 1934, generalized this point
of law: “One who, without a privilege to do so, intentionally
prevents a third person from giving to another aid necessary to
his bodily security, is liable for bodily harm caused to the other
by the absence of aid which he has prevented the third person
from giving.” RESTATEMENT OF TORTS § 326; see also id. § 327
(negligence); RESTATEMENT (SECOND) OF TORTS §§ 326, 327;
W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF
TORTS 382 (5th ed. 1984). This common law rule is firmly
grounded.4 By interposing itself between a terminally ill patient

4
See, e.g., Beck v. Haik, 377 F.3d 624, 633-34 (6th Cir.
2004) (discussing appropriate jury instruction for claim of interference
 10

and her only means of prolonging her life, the FDA’s policy
runs counter to the common law’s historical prohibition on
interfering with rescue.

The common law protection, of course, is for rescues that
are reasonably necessary. In an effort to distinguish this
historical protection, the court relies upon the fact that the new
investigational drugs “have not been shown to be safe, let alone
effective at (or ‘necessary’ for) prolonging life.” Op. at 25. But
this confuses what is necessary with what is sufficient. This is
not a case about elective medical treatments. Without access,
Alliance members will die. No doubt the deceased members of
the Alliance who were denied access to experimental drugs that
were subsequently approved by the FDA would have been
surprised to learn that these drugs, under the court’s analysis,
were unnecessary to the preservation of their lives. See Br. of
Appellants at 31 n.15; Reply Br. of Appellants at 23. See
generally Abigail Alliance for Better Access to Developmental

with rescue); Ross v. United States, 910 F.2d 1422 (7th Cir. 1990)
(holding that a deputy sheriff committed a constitutional tort by
interfering with efforts to rescue a drowning boy); United States v.
Lawter, 219 F.2d 559, 562 (5th Cir. 1955) (holding that the
government is liable when it prevents others from attempting a rescue
and takes no action itself); Sneider v. Hyatt Corp., 390 F. Supp. 976,
980 & n.2 (N.D. Ga. 1975) (noting that “deliberate interference with
rescue efforts by third parties is a traditional basis for imposing
liability”); Soldano v. O’Daniels, 190 Cal. Rptr. 310, 313, 316-18 (Ct.
App. 1983) (applying Restatement); Thomas v. Williams, 124 S.E.2d
409, 414 (Ga. Ct. App. 1962) (sustaining cause of action for
interference with rescue where defendant prevented rescue of inmate
from jail cell during fire); Riggs v. Colis, 695 P.2d 413, 415 (Idaho
1985) (applying Restatement); Byrne v. Long Island State Park
Comm’n, 323 N.Y.S.2d 442 (Sup. Ct. 1971); see also Commonwealth
v. Marcelli, 441 N.E.2d 270, 271 (Mass. Ct. App. 1982) (criminal
liability); CAL. PENAL CODE § 148.2(1) (same).
 11

Drugs v. von Eschenbach, 469 F.3d 129 (D.C. Cir. 2006)
(“Abigail Alliance II”). Thus, the court’s apparent understanding
of the meaning of “necessity” is manifestly flawed. See Op. at
25 n.15. By the court’s reasoning, it is not “necessary” for the
driver of a car that is hurtling toward a cliff to press the brake
because we “cannot know until after” he has done so whether the
car will stop in time. Alliance members, like the endangered
driver, will perish without remedial steps. The question
presented in this case is not whether investigational drugs are
necessary to a terminally ill patient who has exhausted
conventional treatment options — they are — but who will make
the subsequent decision about using these medications, the
patient with her doctor or the government. Moreover, as Prosser
and Keeton have explained, “[t]he principle [that one may not
prevent aid by others] has been carried even to the length of
holding that there is liability for interfering with the possibility
of such aid.” KEETON ET AL., supra, at 382.

Throughout its discussion of self-defense and interference
with rescue, the court recognizes that common law rights are not
unlimited but fails to acknowledge that the evolved limitations
on hallowed rights do not undercut the core concerns that
animate them — here, the special importance of life and
attempts to preserve it. That the ultimate protection of such
varying attempts to save life is cabined by precedents discussing
“necessity” speaks not to the absence of an underlying right to
attempt to protect life but rather to the recognition of competing
governmental interests that in various circumstances justify the
deprivation of or a limitation upon the right. Whether similar
countervailing interests exist in this case is a question bearing on
the resolution of strict scrutiny analysis, not on whether it should
apply.

3. Although the Supreme Court has not squarely addressed
the right to use potentially life-saving medications, it has
 12

developed a sizable body of law regarding the right to a
potentially life-saving medical procedure when the life or health
of a pregnant woman is on the line. In Roe, 410 U.S. at 164-65,
and again in Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833, 846, 880 (1992), the Court held that
even after fetal viability, a state cannot constitutionally proscribe
abortion “where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother,” Roe, 410 U.S. at 164-65; Casey, 505 U.S. at 879
(plurality opinion); accord Ayotte v. Planned Parenthood of N.
New Eng., 546 U.S. 320, 327-28 (2006). In so doing, the Court
acknowledged the tradition of “‘preserving the life of the
mother,’” Roe, 410 U.S. at 137 (quoting Rex v. Bourne, [1939]
1 K.B. 687 (Crim. App.)), both in the common law, see id., and
in early state statutes, see id. at 138 (citing “model” legislation
enacted in New York in 1828).

In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme
Court squarely addressed whether a state may ban a particular
medical procedure in cases where a patient’s health or life is
endangered. The Court held that “the governing standard
requires an exception ‘where it is necessary, in appropriate
medical judgment for the preservation of the life or health of the
mother.’” Id. at 931 (quoting Casey, 505 U.S. at 879). There,
the State of Nebraska could not constitutionally ban particular
abortion procedures, notwithstanding the state’s “interest in the
potentiality of human life,” id. at 930, even though the state
claimed that there were adequate alternatives, id. at 931-32.
Here, the situation is even starker: The Alliance’s terminally ill
members have no remaining alternatives except the medications
to which the FDA denies them access. This Term all nine
justices of the Supreme Court agreed that controlling precedents
forbid the government from banning an abortion procedure “if
it ‘subject[ed] [women] to significant health risks,” Gonzales v.
Carhart, 127 S. Ct. at 1635 (quoting Ayotte, 546 U.S. at 328)
 13

(alterations in original); accord id. at 1641-42 (Ginsburg, J.,
with whom Stevens, Souter, and Breyer, JJ., join, dissenting),
and the Court repeatedly emphasized the availability of safe
alternative procedures before approving the ban, see id. at 1636,
1637, 1638. The right sought by the Alliance pertains only to
those for whom no such alternatives exist.

Consequently, for the court to conclude that the Supreme
Court has not already decided that medical self-preservation is
fundamental, the court is forced to conclude that when a
patient’s life is on the line, medical procedures like abortion are
to be analyzed differently than medical treatments consisting of
prescription medications. To draw this distinction, the FDA
offers only the empty assertion that “the right to abort a fetus to
save the life or health of the mother is simply an aspect of the
underlying constitutional right of abortion recognized in Roe.”
Brief for Appellees at 39. This ipse dixit cannot be reconciled
with the fact that a woman’s right to end a life-threatening
pregnancy has long been uncontroversial in the face of state
statutory prohibitions against abortion and distinct from the
considerations that otherwise bear on the procedure. “The
criminal abortion laws passed in every state by 1880 made
exceptions for therapeutic abortions performed in order to save
a woman’s life.” LESLIE J. REAGAN, WHEN ABORTION WAS A
CRIME 5 (1997). Reaching farther back into history, as the
Supreme Court discussed in Roe:

The Ephesian, Soranos, often described as the greatest
of the ancient gynecologists, appears to have been
generally opposed to Rome’s prevailing free-abortion
practices. He found it necessary to think first of the
life of the mother, and he resorted to abortion when,
upon this standard, he felt the procedure advisable.
 14

410 U.S. at 130. This approach continued into the modern era.
When England imposed criminal sanctions for abortion in 1861,
it provided no explicit exception for pregnancies that endanger
the life or health of a mother. Offenses Against the Person Act
of 1861, 24 & 25 Vict., c. 100, § 59. Nonetheless, an English
court determined that the statute could not include procedures
necessary to save the woman’s life, because “as in the case of
homicide, so also in the case where an unborn child is killed,
there may be justification for the act.” Bourne, [1939] 1 K.B. at
690. This history suggests, contrary to the FDA’s view, that a
woman’s right to an abortion as an act of medical self-defense
is independent from her right to an abortion based upon her right
to make deeply personal decisions, see Casey, 505 U.S. at 581.

The court chooses not to distinguish the abortion cases on
this flimsy basis but its approach is no less startling. The court
holds that because the Alliance seeks access only to “potentially
life-saving drugs,” Op. at 28 (emphasis in original), the abortion
cases are distinguishable. Nowhere in the Supreme Court’s
jurisprudence has it intimated that the government may ban
procedures that represent a patient’s only chance of survival
because they might not be successful. The fundamental right
does not accrue only upon a demonstration of surefire
actualization; the trigger is the necessity, which is crucially
different from the sufficiency to which the court repeatedly
refers. Indeed, in Stenberg, the Supreme Court addressed the
level of medical consensus needed for a procedure to become
protected, holding that procedures supported by “substantial
medical authority” could not be proscribed. See 538 U.S. at
938. The Court was careful not to require medical unanimity,
see id. at 937, or even “general medical studies,” see id. at 935,
like those required for FDA approval of investigational new
drugs for commercial marketing, see 21 C.F.R. pt. 312.
Although Gonzales v. Carhart clarifies that government may
regulate to some extent “where there is uncertainty over whether
 15

the barred procedure is ever necessary to preserve . . . health,
given the availability of other . . . procedures that are considered
to be safe alternatives, 127 S. Ct. at 1638, Stenberg remains
good law, and there are no alternatives to preserve life, let alone
health, in this case.

Although the FDA does not contend that its approval
process reflects the Stenberg standard, the court nonetheless
makes the wholly unsupported assertion that “the collective
judgment of the scientific and medical communities [is]
expressed through the FDA’s clinical testing process.” Op. at
26. To the contrary, the Alliance specifically alleges in
attachments to its complaint that the FDA has denied terminally
ill Alliance members access to investigational new drugs
“reported to have great potential,” Decl. of Carole Steele ¶ 3,
and acknowledged by the “medical community” as “far and
away . . . superior to anything then available,” Decl. of Victoria
Jean Doran ¶ 2. At this stage of the proceedings, the court is
required to accept the Alliance’s allegations as true. See, e.g.,
Broudy v. Mather, 460 F.3d 106, 116 (D.C. Cir. 2006). Thus,
there are situations where a terminally ill patient seeks access to
a new medication that has not yet been approved by the FDA for
commercial marketing but that has been recognized by the
medical community as that patient’s best chance to survive. In
such instances, the Fifth Amendment guarantee of due process
protects the terminally ill patient’s pursuit of those medications.

There is, then, no merit to the FDA’s suggestion adopted by
the court that in the medical context there can be no deeply
rooted privilege to attempt to save one’s own life with medical
advances because medical advances capable of saving lives are
a relatively recent phenomenon. Br. of Appellee at 34-35; Op.
at 21 & n.12. As the prior discussion demonstrates, the Alliance
correctly disputes the premise of this argument.
 16

B.
Against this substantial historical record demonstrating the
deep roots of the right to preserve one’s own life, it is no
coincidence that neither the court nor the FDA can marshal
evidence from the early history of the Nation demonstrating that
the federal government or any state thought to restrain the
terminally ill from accessing medical treatments and procedures
that had not proven unsafe but were of unknown efficacy. Still,
the court asserts that “a lack of government interference . . .
cannot be enough” to demonstrate that a right is deeply rooted.
This reasoning is misguided.

First, the most fundamental rights are those that no
government of the people would contemplate abridging — it is
doubtful that many courts or legislatures have discussed whether
the government can determine whether we are allowed to
breathe air, but this does not make our access to oxygen any less
grounded in history. Cf. U.S. CONST. amend. IX (stating that
“[t]he enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people”). In considering whether the terminally ill patient’s
interest in self-preservation is protected by the Due Process
Clause, the court overlooks the most fundamental evidence of
the protection that the Alliance claims, namely that the words
“life” and “liberty” are in the Due Process Clause itself. The
right to life, and the asserted corollary right to attempt to
preserve life, is not a second derivative species of “liberty”
whose protection by the Constitution should be approached with
skepticism. Insofar as courts should be skeptical of interfering
with the legislative debate and ongoing democratic discussions
about fundamental issues of life and death, that skepticism is
better applied to the latter portion of the strict scrutiny analysis
— the evaluation of the competing government interests and the
greater or lesser narrowness of the tailoring required in the face
of scientific uncertainty and conflicting opinions. See Abigail
 17

Alliance I, 445 F.3d at 478 n.9. 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, and deprive an express constitutional interest of its
due weight in the court’s analysis.

Second, the Supreme Court’s statements on fundamental
rights do not support the court’s conclusion. In Glucksberg
itself, the Supreme Court determined that the claimed right to
assisted suicide was not deeply rooted because “for over 700
years, the Anglo-American common-law tradition has punished
or otherwise disapproved of both suicide and assisting suicide.”
521 U.S. at 711. In the Court’s words: “[W]e are confronted
with a consistent and almost universal tradition that has long
rejected the asserted right, and continues explicitly to reject it
today, even for terminally ill, mentally competent adults.” Id.
at 723. But the Supreme Court did not say, as the FDA argued
and this court appears to agree, that a right can be fundamental
only if it has been acknowledged by statute or decisional law.
A plurality of the Supreme Court said the opposite in Michael H.
v. Gerald D., 491 U.S. 110, 122 n.2 (1989), in observing that
historical “protection need not take the form of an explicit
constitutional provision or statutory guarantee, but it must at
least exclude . . . a societal tradition of enacting laws denying
the interest.”

Third, the court’s concern that “such a premise [would]
support sweeping claims of fundamental rights” neglects the
existence of the second Glucksberg criterion. Strict scrutiny is
not triggered just by a history of protection — otherwise, the
entire common law would be constitutionalized. It is the second
requirement, that a right be “‘implicit in the concept of ordered
liberty,’ such that ‘neither liberty nor justice would exist if they
were sacrificed,’” 521 U.S. at 702 (quoting Palko, 302 U.S. at
325, 326), that guards against unwarranted expansion of
 18

substantive due process rights. Just as in the context of the
necessity defense at common law, the court conflates these two
distinct inquiries, and in its haste to acquire a limiting principle,
it constructs a significant and unwarranted roadblock to judicial
recognition of fundamental rights. This roadblock starts from
the Supreme Court’s requirement, in the interest of judicial
restraint, that ‘[s]ubstantive due process’ analysis must begin
with a careful description of the asserted right.” Reno v. Flores,
507 U.S. 292, 301 (1993). Although the court appropriately
assumes the Alliance has satisfied the requirement in this case,
the court then errs by effectively holding that the first
Glucksberg criterion can be satisfied only by historical evidence
involving the exact situation that the Alliance presented to us
today. It offers no principled reason for ignoring highly relevant
evidence, particularly with respect to the historical record
concerning abortion to save the life of the mother.

Fourth, in the alternative, the court shifts the target and
looks to historical evidence of regulation for safety. The court
claims that post-Phase I testing is designed not only to test a
drug’s efficacy but also to continue monitoring its safety. Op.
at 15. As support, the court lists instances in which drugs have
been removed from the market after Phase I because of safety
concerns. See id. at 20 n.11. This inquiry confuses the right —
to save one’s life — with the alleged deprivation, which here
occurs by means of an agency policy. Whether the FDA policy
actually impermissibly infringes upon the asserted right is a
factual question that is not properly resolved at the motion-to-
dismiss stage when all reasonable inferences must be drawn to
the plaintiff’s benefit, see, e.g., Broudy, 460 F.3d at 116.5

5
Although the FDA does not stop examining drug safety
after Phase I, nor does it stop after drugs receive full marketing
approval. The FDA has pulled approved such drugs from the market,
but it does not follow that the FDA can take any action abridging any
 19

Furthermore, safety restrictions are applicable to all medicines
for any pallative purpose, as well as illegal drugs that serve no
pallative purpose, see Abigail Alliance I, 445 F.3d at 478 & n.9,
and therefore tell us little about the regulation of potentially life-

right, related or not, on the basis of its legitimate interest in safety. At
a certain point, the FDA determines that a drug is safe enough for
widespread testing, and the Alliance alleges that this marker is Phase
I approval, where the FDA authorizes expanded testing in up to
“several hundred subjects,” Am. Compl. ¶ 14; 21 C.F.R. § 312.21. In
fact, between 1997 and 2000, 5.34 percent of fully approved new
drugs were pulled from the market. Kris Hundley, Drug’s Chilling
Path to Market, ST. PETERSBURG TIMES, May 27, 2007, at 1A. Since
then, many more approved drugs have been withdrawn. See, e.g.,
Press Release, Food & Drug Admin., FDA Announces Discontinued
Marketing of GI Drug, Zelnorm, for Safety Reasons (March 30, 2007),
http://www.fda.gov/bbs/topics/NEWS/ 2007/NEW01597.html; Press
Release, Food & Drug Admin., FDA Announces Voluntary
Withdrawal of Pergolide Products (March 29, 2007),
http://www.fda.gov/bbs/topics/NEWS/2007/NEW01596.html
(Permax); Press Release, FDA Asks Purdue Pharma to Withdraw
P a l l a d o n e f o r Safety Reaso n s ( J u l y 1 3 , 2 0 0 5 ) ,
http://www.fda.gov/bbs/topics/news/2005/NEW01205.html; Press
Release, Food & Drug Admin., FDA Issues Public Health Advisory
on Tysabri, A New Drug for MS (Feb. 28, 2005),
http://www.fda.gov/bbs/topics/news/2005/NEW01158.html; Press
Release, Food & Drug Admin., FDA Issues Public Health Advisory
on Vioxx as its Manufacturer Voluntarily Withdraws the Product
(Sept. 30, 2004), http://www.fda.gov/bbs/topics/news/2004/
NEW01122.html; see also, e.g., Press Release, Food & Drug. Admin.,
Rezulin To Be Withdrawn from the Market (March 21, 2000),
http://www.fda.gov/bbs/topics/NEWS/NEW00721.html; Press
Release, Food & Drug Admin., FDA Announces Withdrawal
Fenfluramine and Dexfenfluramine (Fen-Phen) (Sept. 15, 1997),
http://www.fda.gov/cder/news/phen/fenphenpr81597.htm; Gina Kolata
& Edmund L. Andrews, Anticholesterol Drug Pulled After Link With
31 Deaths, N.Y. TIMES, Aug. 9, 2001, at A12 (Baycol).
 20

saving medicines sought by terminally ill patients who have no
alternative treatment options.

By redirecting its inquiry, the court conveniently avoids the
sparse history of drug regulation for efficacy. See Abigail
Alliance I, 445 F.3d at 481-83. Prior to 1906, there was
essentially no drug regulation in the United States save
protections against fraud and adulteration.6 In 1906, Congress
enacted the Pure Food and Drug Act (“1906 Act”), ch. 3915, 34
Stat. 768 (repealed 1938), which prohibited misbranded and

6
See Charles J. Walsh & Alissa Pyrich, Rationalizing the
Regulation of Prescription Drugs and Medical Devices: Perspectives
on Private Certification and Tort Reform, 48 RUTGERS L. REV. 883,
890-91 (1996); Lois K. Perrin, Note, The Catch-22 for Persons with
AIDS: To Have or Not To Have Easy Access to Investigational
Therapies and Early Approval for New Drugs, 69 S. CAL. L. REV. 105,
109 (1995); see also Gonzales v. Raich, 545 U.S. 1, 11-13 (2005).
FDA Historian Wallace F. Janssen writes that prior to 1906 was the
“heyday of ‘patent medicines,’” a time when “[a]nyone, no matter
how ignorant or unqualified, could go into the drug manufacturing
business” and when “[m]edicines . . . were sold without restriction at
almost every crossroads store.” Wallace F. Janssen, Outline of the
History of U.S. Drug Regulation and Labeling, 36 FOOD DRUG COSM.
L.J. 420, 422 (1981) (hereinafter “Janssen, Outline of the History”).
He further recounts that in “colonial days, and long afterward,
consumers . . . were their own food and drug inspectors,” “there was
a striking absence of statutes dealing with drugs,” and, although there
were food inspection laws and standards for weights and measures, see
id. at 423, 425, “drug laws were virtually non-existent.” Janssen,
America’s First Food and Drug Laws, 30 FOOD DRUG COSM. L.J. 665,
669, 671 (1975). This suggests that in this Nation’s early history there
were no restrictions on a patient’s access to potentially life-saving
medications, regardless of whatever restrictions may have been placed
on physicians, pharmacists, apothecaries, poisons, or misbranded or
adulterated substances. See id. at 669-72; Janssen, Outline of the
History, supra, at 426-28. But cf. Op. at 16-18.
 21

adulterated foods or drugs from entering interstate commerce,
id. § 2, 34 Stat. at 768, and prohibited false and misleading
labeling, id. § 8, 34 Stat. at 770. For a small number of
particularly dangerous drugs, the 1906 Act required the labels to
identify the drug’s ingredients and quantities. Id. The statute
also authorized the Bureau of Chemistry, a predecessor of the
FDA, to seize nonconforming goods and to recommend federal
prosecution of those who violated the 1906 Act. Id. § 4, 34 Stat.
at 769. The 1906 Act did not, however, limit individual access
to new drugs or regulate therapeutic claims by drug
manufacturers. Cf. United States v. Johnson, 221 U.S. 488
(1911). It thus appears that a patient still could obtain access to
any new drug for medicinal use, even if the drug had no
therapeutic benefit, albeit subject to the controls placed on
narcotics by the Harrison Narcotic Act of 1914, ch. 1, 38 Stat.
785.7

In 1938, Congress enacted the Federal Food, Drug, and
Cosmetic Act (“1938 Act” or “FDCA”) in response to the deaths
of more than one hundred people, many of them children, from
ingesting Elixir Sulfanilamide, which had been marketed as an
antibiotic. See REPORT OF THE SECRETARY OF AGRICULTURE ON
DEATHS DUE TO ELIXIR SULFANILAMIDE-MASSENGILL, S. DOC.
NO. 75-124, at 1-3 (1937) (“1937 REPORT”).8 For the first time,
Congress required that drug manufacturers test, and the FDA

7
See Steven R. Salbu, Regulation of Drug Treatments for
HIV and AIDS: A Contractarian Model of Access, 11 YALE J. ON REG.
401, 406-09 (1994); James L. Zelenay, Jr., The Prescription Drug
User Fee Act: Is a Faster Food and Drug Administration Always a
Better Food and Drug Administration?, 60 FOOD & DRUG L.J. 261,
263-64 (2005); cf. Minnesota ex rel. Whipple v. Martinson, 256 U.S.
41, 45 (1921).
8
See Salbu, supra note 7, at 407.
 22

review, all new drugs for safety prior to their commercial
distribution. Ch. 653, 52 Stat. 1040 (1938) (codified as
amended at 21 U.S.C. § 301 et seq.); 1937 REPORT, supra, at 1-
3. Under the 1938 Act, a new drug could be commercially
marketed only after the manufacturer filed a New Drug
Application (“NDA”) with the FDA that set forth medical and
scientific information attesting to the drug’s safety. The 1938
Act did not, however, require drug manufacturers to receive
affirmative FDA approval before marketing the drug.9 Rather,
an NDA became automatically effective within a time frame set
by the FDA unless the FDA determined that the drug was unsafe
and barred its commercial distribution.10 It was not until 1951,
in the Durham-Humphrey Amendment, that Congress created
the category of prescription drugs, i.e., drugs that are unsafe for
self-medication but that can be used while under a doctor’s
supervision. See Act of Oct. 26, 1951, ch. 578, 65 Stat. 648
(codified at 21 U.S.C. § 353(b)).

Only in 1962 did Congress require drug manufacturers to
provide empirical evidence of the effectiveness of a drug as
opposed to evidence of the drug’s safety.11 The Kefauver-Harris
Amendments, Pub. L. No. 87-781, 76 Stat. 780 (1962) (codified
in scattered sections of 21 U.S.C. §§ 301-81), were enacted in
response to the rash of birth defects discovered in babies whose
mothers had taken Thalidomide to ease morning sickness caused

9
See Zelenay, supra note 7, at 264-65.
10
Id.
11
See Michael D. Greenberg, AIDS, Experimental Drug
Approval, and the FDA New Drug Screening Process, 3 N.Y.U. J.
LEGIS. & PUB. POL’Y 295, 295, 300 & n.23 (1999–2000).
 23

by pregnancy.12 The Kefauver-Harris Amendments transformed
drug regulation and the approval process in several respects.
First, the Amendments required the FDA to review a new drug
for both safety and effectiveness and specified that to
demonstrate effectiveness manufacturers were required to
submit data from “adequate and well-controlled investigations.”
21 U.S.C. § 355(d). Second, the Amendments authorized the
FDA to approve human clinical trials, regulate drug advertising,
inspect drug-manufacturing facilities, and promulgate good
manufacturing practices. The Amendments also required drug
manufacturers to disclose to the FDA any information they
received regarding the adverse consequences of approved
drugs.13 This legislation set the framework for the system of
drug regulation currently in place.

Despite the increased federal scrutiny of new drugs,
important aspects of patient access to drugs are unregulated by
the government and appear always to have been unregulated.
The “FDA’s regulatory authority . . . extends to manufacturers
of drugs but not to the physicians who dispense them.”14 Thus,
a doctor may — and approximately 21% of the time does —
prescribe a drug to a patient for a purpose other than that for

12
See Salbu, supra note 7, at 408 n.41. See generally
HARVEY TEFF & COLIN R. MUNRO, THALIDOMIDE: THE LEGAL
AFTERMATH 1-10 (1976); Janssen, Outline of the History, supra note
6, at 438.
13
See Walsh & Pyrich, supra note 6, at 901; see also
Zelenay, supra note 7, at 266.
14
Steven R. Salbu, Off-Label Use, Prescription, and
Marketing of FDA-Approved Drugs: An Assessment of Legislative and
Regulatory Policy, 51 FLA. L. REV. 181, 189-92 (1999); see Chaney
v. Heckler, 718 F.2d 1174, 1180 (D.C. Cir. 1983), rev’d on other
grounds, 470 U.S. 821 (1985).
 24

which the FDA has approved the use of the drug.15 Such “off-
label” use may occur even if the drug is not deemed safe or
effective for that use, such as when a drug studied only for
adults is prescribed for a child. Further, it appears that the FDA
has never prohibited either off-label prescription or off-label use
of drugs.16 In recent years, the FDA has been moving to permit
drug manufacturers to promote the use of their drugs for off-
label purposes in limited circumstances.17 See Food and Drug
Administration Modernization Act of 1997, Pub. L. No.
105-115, 111 Stat. 2296 (codified in scattered sections of 21
U.S.C. §§ 301-81).

For more than half of this Nation’s history, then, until the
enactment of the 1906 Act, a person could obtain access to any
new drug without any government interference whatsoever.
Even after enactment of the FDCA in 1938, Congress imposed
no limitation on the commercial marketing of new drugs based
upon the drugs’ efficacy. Rather, at that time, the FDA could
interrupt the sale of new drugs only if it determined that the new
drug was unsafe. Government regulation of such drugs
premised on concern over a new drug’s efficacy, as opposed to
its safety, is of very recent origin. Even today, a patient may use
a drug for unapproved purposes where the drug may be unsafe
or ineffective for the off-label purpose. In short, encumbrances
on the treatment decisions of a patient and her physician lack the
historical pedigree of the rights that the Alliance seeks to
vindicate.

15
See David C. Radley et al., Off-Label Prescribing Among
Office-Based Physicians, 166 ARCHIVES INTERNAL MED. 1021 (2006)
(studying 2001 data of office-based physicians).
16
See Salbu, supra note 14, at 189-92.
17
See id. at 211.
 25

Instead of confronting this history, the court relies on
statutory restrictions that address misbranded or adulterated
drugs, sales of poisons, and fraudulent curative claims, see Op.
at 17-18 & n.8, government restrictions that are not inconsistent
with the right of a person to attempt to save her own life. None
of the cited restrictions, focusing largely on the licensing of
pharmacists, suggest a physician could not prescribe a new
medication for a terminal patient. While Congress has imposed
increased responsibilities on the drug industry and the FDA
upon evidence of tragic consequences of some new drugs as a
result of new technology, see Abigail Alliance I, 445 F.3d at
482, the FDA does not regulate physicians, id. at 483, and off-
label prescription of medications is a long-standing practice that
has not been outlawed, id. Elsewhere the court relies on straw
men that are either acknowledged by the court to be irrelevant,
Op. at 17 n.8 (an incident in 1630 not the result of “legislative
or regulatory intervention”); or are in fact irrelevant, id. at 30
n.18 (discussing “affirmative access claim[s]” even though the
Alliance makes no such claim); or are speculative, id. at 21 n.12
(noting “a more plausible explanation for the limited efficacy
regulation”); see also Amicus Br. for Economists John E. Calfee
et al. This analysis hardly overcomes the history and
Constitutional recognition of the underlying right to life that the
Alliance claims.

The common law traditions protecting necessity, forbidding
interference with rescue, and supporting self-defense, and the
Supreme Court’s validation of the fundamental right of a
pregnant woman to undergo a medical procedure to save her
own life demonstrate that the protected liberty interest of the
terminally ill to choose whether to pursue prescription
medications that may save their lives is deeply rooted in this
Nation’s history. Nothing in the history of drug regulation
demonstrates otherwise. In view of the common law history,
there is no occasion to determine how the first Glucksberg
 26

inquiry would be evaluated were there no evidence supporting
or refuting a historical basis for a claimed fundamental right.

II.

For a right to be fundamental, the Glucksberg analysis
requires that it also be “‘implicit in the concept of ordered
liberty,’ such that ‘neither liberty nor justice would exist if they
were sacrificed,’” Glucksberg, 521 U.S. at 721 (quoting Palko,
302 U.S. at 325, 326). The Supreme Court has explained that
this expression “encompasses and protects the personal
intimacies of the home, the family, marriage, motherhood,
procreation, and child rearing.” Paris Adult Theatre I v. Slaton,
413 U.S. 49, 65 (1973). It also safeguards the “freedom of
thought and speech,” Palko, 302 U.S. at 326, and “[t]he security
of one’s privacy against arbitrary intrusion by the police,” Wolf
v. Colorado, 338 U.S. 25, 27-28 (1949), overruled on other
grounds by Mapp v. Ohio, 367 U.S. 643 (1961). In the context
of criminal trials, matters “implicit in the concept of ordered
liberty” include “the right to counsel at trial,” Teague v. Lane,
489 U.S. 288, 311 (1989) (plurality opinion) (quoting Mackey
v. United States, 401 U.S. 667, 693-94 (1971) (opinion of
Harlan, J.)); the presumption that “all are innocent until the state
has proved them to be guilty,” United States v. Salerno, 481
U.S. 739, 763 (1987); and “[t]he principle that a State may not
knowingly use false evidence, including false testimony, to
obtain a tainted conviction,” Napue v. Illinois, 360 U.S. 264, 269
(1959).

Unlike Glucksberg’s historical inquiry, this step assesses
whether the Alliance’s claimed right is a component of the
“compendious expression for all those rights which the courts
must enforce because they are basic to our free society.” Wolf,
338 U.S. at 27. As Justice Frankfurter wrote, these rights create
“a realm of sanctuary surrounding every individual and
 27

infrangible, save in a very limited class of circumstances, by the
agents of government.” Monroe v. Pape, 365 U.S. 167, 208-09
(1961) (Frankfurter, J., dissenting), maj. op. overruled by Monell
v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Setting aside the textual anchor of the Alliance’s claim in
the right to life, the claimed right also falls squarely within the
realm of rights implicit in ordered liberty. The core of liberty is
autonomy. As Professor Charles Fried writes, “[l]iberty is the
exercise of our powers as self-conscious, judging individuals,
individuals who in making our own lives cannot be responsible
to anyone . . . else except as we choose to be.” CHARLES FRIED,
MODERN LIBERTY 180 (2007). It is difficult to imagine any
context in which this liberty interest would be stronger than in
trying to save one’s own life. Cf. BRIAN CLARK, WHOSE LIFE IS
IT ANYWAY? (1978).

The Supreme Court engaged in similar analysis in Cruzan.
In evaluating the claim that due process protects a person’s right
to refuse life-sustaining treatment, the Court reasoned that “it
cannot be disputed that the Due Process Clause protects an
interest in life as well as an interest in refusing life-sustaining
medical treatment.” 497 U.S. at 281. The Court acknowledged
that “[t]he principle that a competent person has a
constitutionally protected liberty interest in refusing unwanted
medical treatment,” could be inferred from its prior decisions.
Id. at 278. Like the right claimed in Cruzan, the right claimed
by the Alliance to be free of FDA imposition does not involve
treatment by the government or a government subsidy. Rather,
the Alliance seeks only to have the government step aside so as
not to interfere with the individual right of self-determination.
The Alliance claims that there is a protected right of terminally
ill patients to choose to use potentially life-saving
investigational new drugs that have been determined to be safe
for substantial human testing. This reasoning tracks Eisenstadt
 28

v. Baird, 405 U.S. 438 (1972), where the Supreme Court noted
that the right to be free from unwanted government intrusion
into the fundamental decision whether to have children
establishes a right of access to contraceptives, id. at 453.

In summary, there is no logic to be found, in view of oft-
limited rights considered inherent in the nature of ordered
liberty, see Abigail Alliance II, 469 F.3d at 136-37, in the
conclusion that the right to save one’s life is unprotected
notwithstanding the specific protection afforded life in the Fifth
Amendment to the Constitution.

III.

For these reasons, I have serious disagreements with the
court’s assessment of the Alliance’s claim to a fundamental right
protected by the Fifth Amendment to the Constitution. It is no
more than tragic wordplay to suggest that the Alliance’s liberty
claim to potentially life prolonging medications, when no other
government approved alternatives exist, does not involve a
corollary to the right to life enshrined in the Fifth Amendment
to the Constitution. See Op. at 11 n.5. Denying a terminally ill
patient her only chance to survive without even a strict showing
of governmental necessity presupposes a dangerous brand of
paternalism. As the court phrases it, because “[w]e . . . cannot
know until the clinical testing process has been completed that
these drugs are necessary,” Op. at 25 n.15 (emphasis added), the
terminally ill patient, informed by her physician, is denied a
right to decide whether to bear those risks in an attempt to
preserve her life. Such intervention is directly at odds with this
Nation’s history and traditions giving recognition to individual
self-determination and autonomy where one’s own life is at
stake and should extend no further than the result in this case.
Because the right of a terminally ill patient to access potentially
life-saving investigational medications satisfies the Glucksberg
 29

test, I would remand this case for the district court to assess in
the first instance whether there exists a compelling
governmental interest, narrowly tailored, to overcome the
Alliance’s interest. Flores, 507 U.S. at 302. Accordingly, I
respectfully dissent.