A divided federal appeals court announced Tuesday that according to the U.S. constitution terminally ill patients do not have a right to be treated with experimental drugs, even if the medicine is not likely to be approved before they die.
The ruling by the U.S. Court of Appeals for the District of Columbia Circuit overturned last year's decision by a smaller panel of the same court, which held that terminally ill patients may not be denied access to potentially lifesaving drugs.
The full court disagreed, saying in an 8-2 ruling that it would not create a constitutional right for patients to assume "any level of risk" without regard to medical testing.
"Terminally ill patients desperately need curative treatments," Judge Thomas B. Griffith wrote for the majority. But "their deaths can certainly be hastened by the use of a potentially toxic drug with no proven therapeutic benefit."
Food and Drug Administration approval of drugs generally requires extensive testing that can involve years of trials and thousands of patients.
The Abigail Alliance for Better Access to Developmental Drugs and the Washington Legal Foundation sued the FDA in 2003, seeking access for terminally ill patients to drugs that have undergone preliminary safety testing in as few as 20 people but have yet to be approved.
In a sharply worded dissent, Judge Judith W. Rogers called the ruling "startling." She said courts have established the right "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."
"But the right to try to save one's life is left out in the cold despite its textual anchor in the right to life," Rogers wrote.
Rogers was joined by Chief Judge Douglas H. Ginsburg.
The court noted that there are government programs that provide access to experimental drugs in certain situations. It said the issue is not closed and said Congress might be a better venue than the courts to address future concerns.
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