The much-anticipated en banc
decision of the D.C. Circuit came down today. The court ruled, 8-2, that dying patients do not have a fundamental right of access to drugs that have either just completed Phase I testing or are in Phase II. The big surprise to me was that no-one on the court joined the two judges -- Chief Judge Ginsburg and Judge Rogers -- who comprised the majority in the original panel. The idea of a new fundamental right seemed far-fetched and unlikely to go anywhere, but not one of the other eight judges on the court saw the issue the same way as the dissenters? This will be a good case for my fall Health Law class -- useful overview of the drug-approval process, good discussion of fundamental-rights law, and an example (if they didn't get this in Con Law II) of how the framing of the claimed right (narrow and specific vs. broad and general) will usually dictate the outcome of the case.
Next stop: Supreme Court. What are the chances four justices will vote to grant cert.? I'll venture a guess: 5% (never say never, but this case comes very close to a zero-percenter).