Abigail Alliance v. Von Eschenbach

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Abigail Alliance v. Von Eschenbach was a lawsuit brought by a coalition of patients and a patient-advocacy group to establish a constitutional right to greater access to experimental drugs by patients having terminal diseases.

The plaintiffs claimed that the Food and Drug Administration places unconstitutional obstacles in the way dying patients who have run out of other treatment options.

The patient-advocacy group, the Abigail Alliance for Better Access to Developmental Drugs, remarked that:[1]

"Huge numbers of Americans die each year after being denied access to developmental drugs that might have prolonged their lives -- drugs that, in many instances, later received FDA marketing approval."

The plaintiffs found initial success in a 2-1 decision in their favor by the Court of Appeals for the D.C. Circuit. However, an en banc sitting of that court then overwhelming reversed that initial panel decision, and held that there should not be a new constitutional right to potentially lifesaving treatment. The court expressed concern that a new constitutional right may become a slippery slope to demand stem cell research or other controversial and unproven treatments.

The plaintiffs then petitioned the U.S. Supreme Court for review of their case, in the hope of overturning the decision against them. On January 14, 2008, the Supreme Court refused to grant certiorari to consider overturning the lower court decision.[2]


Scott Bullock of the Institute for Justice in Virginia espoused the libertarian support for a new constitutional right to experimental, but potentially life-saving, drugs in an editorial in the Washington Times:[3]

"The Abigail Alliance was founded by Abigail, her father and other patients and their families who seek greater access to drugs approved for clinical trials. They sued in federal court in Washington, D.C., represented by the Washington Legal Foundation. ... Of course, the dying patients hope the drugs will be effective, but they do not have time to wait for studies to prove that; experimental drugs may be the only hope to save their lives. ... Now is the time for the Supreme Court to take up this case to ensure that the protection of essential constitutional rights do not become a matter of word games and semantics."

The Supreme Court disagreed, as not even four votes supported a grant of certiorari.


  1. http://www.bloomberg.com/apps/news?pid=20601103&sid=atnVIGEgRQt4&refer=us
  2. http://www.baltimoresun.com/news/nation/bal-te.fda15jan15,0,7129554.story
  3. http://washingtontimes.com/article/20080110/COMMENTARY/845466365/1012