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. . , 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." It would be particularly startling if the state, which is constitutionally prohibited from regulating abortion procedures when it risks the health of the mother, were free to regulate pharmaceuticals when the regulation ensures the death of the patient. In sum, if there is no fundamental right preventing the state from handing out death sentences to achieve some governmental interest as the FDA did in the case of Abigail Burroughs then it is hard for me to imagine that any right can be fundamental. But under the current state of the law, there clearly are fundamental rights. Thus, I must conclude that the antecedent is false as well and the terminally ill [read] do have a fundamental right of access to experimental drugs. Roger Pilon:Unlike Ed, who shares my aversion to the Supreme Courts concocted distinction between fundamental rights and liberty interests, Curt seems to accept the distinction, concluding with amodus tollensargument: If theres no fundamental right here, then there are no such rights; but the Court has held otherwise; thus, there is a fundamental right here. Curts premise amounts to areductio ad absurdum: doubting this right would lead to contradiction. Fine, but the life of the law has not been logic, as Holmes the jurist amply demonstrated. Were the court to have done the right thing here, Jonathan says, it would have cut a whole swath out of the federal regulatory state, but its a bit late in the day for such a move. Thats apractical, not a legal, point. If thats the courts rationale, lets hear it, not this fundamental rights/judicial scrutiny nonsense .
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