RIGHT TO MEDICAL SELF-DEFENSE, THE

If laws banning the use of force are relaxed when an intruder crawls
in your window and you're home, shouldn't stringent F.D.A.
regulations bend when you're backed into a dark corner by a terminal
illness? That was the gist of an argument made by the U.C.L.A. law
professor Eugene Volokh in the May issue of The Harvard Law Review.
Citing the concept of "medical self-defense," Volokh contended that a
dying American should have the right to buy any drug that has passed
the F.D.A.'s preliminary safety tests.

Currently, the F.D.A. insists that most terminally ill patients
await, like everyone else, full proof of a drug's safety and efficacy.

Volokh's inspiration for the article was a court decision.

In 2006, a panel of the United States Court of Appeals for the
District of Columbia Circuit ruled 2 to 1 that the terminally ill
ought to be able to buy drugs that have passed Phase 1 F.D.A. testing
(of three phases). One judge in the majority was a staunch
conservative, the other a Clinton appointee.

The full Court of Appeals, however, set aside the panel decision and
then, in August, ruled 8 to 2 against the plaintiff, the Abigail
Alliance for Better Access to Developmental Drugs. The court agreed
with the F.D.A.'s arguments that the government has a strong interest
in protecting even the terminally ill from brutal side effects and a
premature death, and that only the full testing regimen can do that.
The court also stressed that the states' efforts to regulate drugs
dated to 1736 and observed that the Supreme Court had rejected a
"medical necessity" argument in the case of medical marijuana.

And it wondered where the right to self-defense would end -- could a
dying patient force a drug company to hand over drugs?

In a vigorous dissent, Justice Douglas Ginsburg said it was
"startling" that the court failed to give the right to self-defense its due.

Volokh continues to hold that both the common law and the
Constitution support a right to obtain the best available medicine,
despite the risks.

In his view, a terminal cancer patient is in precisely the same
situation as a home-intrusion victim or, you might add, a victim of a
rampaging bear, both of whom are exempted from certain legal
prohibitions. (You don't have to check endangered-species regulations
before knifing or shooting the bear.) "Medical self-defense is not an
analogy," Volokh says. "It is self-defense."

[Introduction Sidebar]

THE 7TH ANNUAL YEAR IN IDEAS

For the seventh consecutive December, the magazine looks back on the
passing year through a special lens: ideas. Editors and writers trawl
the oceans of ingenuity, hoping to snag in our nets the many curious,
inspired, perplexing and sometimes outright illegal innovations of
the past 12 months. Then we lay them out on the dock, flipping and
flopping and gasping for air, and toss back all but those that are
fresh enough for our particular cut of intellectual sushi. For better
or worse, these are 70 of the ideas that helped make 2007 what it was. Enjoy.