Abigail Alliance Case — Amicus Brief Filed In U.S. Supreme Court for The Seniors Citizen League

Michael Harless Constitutional Law, Health Law, U. S. Supreme Court

Today we filed an amicus curiae brief in the Supreme Court in the case of Abigail Alliance v. VonEschenbach, Commissioner of the FDA.  The U.S. Supreme Court had been asked by an alliance of terminally ill patients with no conventional medical alternatives to overturn an en banc decision of the U.S. Court of Appeals for the D.C. Circuit which allows the FDA to bar these patients’ access to certain drugs, even after the FDA has approved them for Phase II testing.

Although the issue presented to the Court relates only to terminally ill patients, the underlying constitutional issue applies to any patient and his or her right to make health care choices.

The case involves the “life” and “liberty” rights protected by the Fifth Amendment, and the concept of Substantive Due Process.  The brief calls upon the Court to reject its ever-evolving and arbitrary Substantive Due Process test, as set out in Washington v. Glucksberg, and to examine the text of the Fifth Amendment to learn the framers’ “authorial intent.”  Of course, “life” and “liberty” in the Fifth Amendment followed the framers’ use in the Declaration of Independence, where they are identified as being sourced in our Creator.  The brief explains how the Commentaries of William Blackstone are the best evidence to explain what the framers meant by these terms, and that Blackstone views these rights as being best described in Holy Scriptures.  Our brief then examines the Holy Scriptures to understand the type of God-given “life” and “liberty” rights that the framers intended to protect.  Lastly, the brief explains that common law procedural guarantees were individualized and judicial, completely unlike the FDA procedures, which apply to the populace generally, and are merely administrative.

Link to brief