Tuesday, August 14, 2007

The Federal Judiciary, Aping The German Judges, Allows The Government To Force You To Die When You Are Sick.

August 14, 2007

Re: The Federal Judiciary, Aping The German Judges, Allows The Government To
Force You to Die When You Are Sick.

From: Dean Lawrence R. Velvel

Dear Colleagues:

Only infrequently do I write about judicial opinions. There are a number of reasons, but one in particular is of especial importance. Lawyers and judges are trained to consider every possible nuance and argument. In practice this means that opinions present a host of arguments that do not go to the heart of a problem, that often are ways of trying to find a reason to rule a particular way without dealing with the heart of the matter. A legally trained critic, as I am, is in turn supposed to deal with all or most of the arguments pro and con raised by the court, even though most of them don’t go to the heart or are just excuses, and/or can be fairly described as legal folderol or a sort of legal gobbledygook. Not to deal with all of them is regarded in the profession as a sign of lack of seriousness or ineptitude. But to deal with them is boring and a waste of time.

I’ve written about all this, with a pertinent illustration, on pages 63-67 of Volume I of Thine Alabaster Cities Gleam (Doukathsan Press, 2007). Anyone who wishes to understand the matter further can read about it there. Suffice to say here that, not wishing to be bored or to appear professionally inept (and not wishing to bore the reader either), I usually refrain from writing about legal opinions here.

But sometimes the absurdity of some opinions, or their failure to grapple with matters that are essential in life, just gets to me. So sometimes I do write about them, as shall be done now and in the next few days with regard to a few recent decisions. But I shall control myself by going straight to what seems to be the heart of the matter in each case and usually skipping the legal claptrap, the legal folderol (except that some of it is described -- without being responded to (except for a brief comment occasionally) -- so that you get a sense of the gobbledygook that passes for legal analysis and that must be engaged in if the big shots are to consider one a good lawyer). If skipping the claptrap and folderol makes me inept as a lawyer, so be it.

Let us start today with an August 3, 2007 decision by the United States Court of Appeals for the District of Columbia -- the court that Antonin Scalia, Clarence Thomas and John Roberts sat on before they were anointed to the Supreme Court as a reward for their reactionaryism -- in a case called Abigail Alliance For Better Access To Developmental Drugs v. von Eschenbach . The entire non “senior status” court of appeals judges, not just a panel of three judges, participated in this decision; in fact the hearing in front of the whole court was for the purpose of considering, and reversing, a prior two to one opinion by a panel of three.

Here was the question in the case: if a terminally ill patient has no other option for trying to save his or her own life, does that patient have a right to use experimental drugs that have not yet been proven safe and effective (and, one assumes, may never be proven safe and effective), and that therefore have not been approved by the FDA. Any decent person, recognizing that the patient is terminal and has no other options for trying to save his own life, would say that of course the patient has a right to try the experimental drug if he wishes to. And, at bottom, that is what the two judges in the minority thought (one appointed by Reagan and one by Clinton). But that is not what the judges in the majority thought. (They were variously appointed by Reagan, Clinton and the two Bushes). Oh no. By the majority’s lights the terminally ill patient has no right to use the drugs and thus has no option but to die. (The lack of any option but to die reminds one of Tennyson’s Charge of the Light Brigade: “Theirs not to make reply/Theirs not to reason why/Theirs but to do and die/Into the valley of Death/Rode the six hundred.”)

The heart of the case is, of course, the obvious: Can the government stop someone who has no other options from trying to save his or her own life? But the majority in effect said to hell with this central point. It brought up a ton of legal claptrap, of legalistic folderol, to avoid allowing people to have at least some chance to live and to instead condemn them to death. As said, I shall not bother answering its inhumane arguments. But I shall list them so that you can get some further sense of some of the ways in which courts avoid doing the right thing. The court said:

• Regulation of drugs for safety and efficacy has a long history, going back even to 1736 Virginia and 1447 England.

• No right to obtain experimental drugs “is deeply rooted in our Nation’s history and traditions,” and there is thus no such fundamental right.

• Legal doctrines involving the right to self defense, the ban on intentional interference with rescue, and the doctrine of necessity have no bearing.

• There are risks in taking experimental drugs (as if that matters when you otherwise are a dead man walking).

• Death can be hastened, or the quality of remaining life can be impaired, by toxic results of an experimental drug. So the government has a so-called “rational basis” for refusing to let a terminally ill patient try such a drug. (The “rational basis” test, like all of the judicial tests relating to constitutional rights, is nowhere in the Constitution, but was instead made up by the courts, especially the Supreme Court, out of whole cloth.)

• The FDA and Congress have created programs for early access to experimental drugs when the FDA thinks this warranted. (If the FDA doesn’t think it warranted, the patient is SOL.)

• If the dead men walking don’t like what the FDA has done in denying them access to experimental drugs, they can ask Congress to change it. (Good luck if you’re not a billionaire with the money to bribe half the Congress? – except that, to paraphrase Tom Lehrer on plagiarism (“please to call it research”), please to call it campaign contributions.)

With the conceivable exception of the suggestion of going to Congress, a suggestion hopeless for most people, the arguments put forward by the eight members of the majority (shall I say the heartless, cruel eight members of the majority?), the court’s arguments do not begin to touch the central issue of the case: can the government stop people who have received a death sentence from accessing experimental drugs which hold out their only possible hope for survival. All the court has done, instead, is argue a bunch of far less important matters for the purpose of answering that question in the negative, with the effect of condemning people to deaths that at least conceivably might otherwise be avoided.

It is interesting that among the Court’s horrid arguments is one that stands on its head the Constitution and whole raison d’etre of the nation. Throughout the opinion, the question involved is presented as one of whether an individual has a right against the government, a right defined by the court as here being a right experimental drugs. Defining the right thusly, the court finds that human beings have no such right. But I would have thought, I think the framers would have thought, I would think ardent conservatives like some of the judges who joined the majority would have thought, that the question should be whether the government has a right to condemn to death innocent citizens who have committed no crime, let alone a capital crime, and whose only “crime” is that they had the misfortune to become terminally ill with no hope of cure by ordinary means. When we even ask whether a citizen has a right to life protected against governmental destruction, instead of automatically asking where the government gets a right to condemn an innocent person to death, we have turned the whole basis of our government upside down, not to mention Rousseau (I think it was). But unlimited governmental power is, after all, what the “new conservatism” is all about, so perhaps one shouldn’t be surprised at the horrendous basis of the majority’s opinion.

Before closing, let me turn briefly to the two dissenters. It is perfectly clear that they understand that what is at stake here is the question whether the government can cause you to have to die when there are no conceivable cures but unproven experimental ones. One has but to read the last paragraph of the dissenting opinion to know this. It is thus a bit sad in a way that, to prove themselves good lawyers and good judges, the dissenters have to go through the same kind of legal claptrap as the majority, have to engage in extensive arguments that doctrines related to such matters as necessity, self preservation and self defense favor the patients by analogy, that the right to try to save one’s life is grounded in constitutional text and history, that this right is fundamental and therefore the Government’s action is subject not to the easily met “rational basis” test but to the much more stringent “strict scrutiny” test, and so on.

Yet, though the dissenters - - despite their obeisances to the conventional gods of good lawyering and good judging - - understood that the basic question is whether the government can force someone to have to die from a terminal illness, they still, like the majority itself, looked at the question as being one of determining whether the individual has a right against the government rather than asking why the government has a right in the first place to cause one’s death. Though the two dissenters were far more humane than the majority, they too seemed not to grasp that they were standing the Constitution and our whole system of government on its head by in effect assuming the government can do unto the individual unless the latter has a right against it, instead of asking where in God’s name the government gets such a right to harm the individual in the first place. Put differently, the point here is the easily grasped question of whether government exists for the individual or the individual exists for the government. If the former, we must find an initial right in the government to harm an individual. If the latter, the government can harm anyone it wants for any reason it wants unless we can find some countervailing right possessed by the individual. The judges, however -- certainly those in the majority, and I think the dissent too although one can make a strong argument for the decency of the dissent -- inherently assume the individual exists for the government (even though they don’t think of it this way). The judges, at least in the majority, inherently are the proverbial German judges, it seems to me.

It is no excuse that, because they think there are pros and cons here, the majority would rather that the Congress or the FDA make the decision. Remember: the whole case is about people who have no option for saving their lives except by experimental drugs. Shall we say, as the majority necessarily implies, that Congress or the FDA can legitimately stop them from trying to save their lives?

Let me conclude by saying that I have long thought, and said, that the mainstream media do a great public disservice by not identifying, or by barely identifying, judges who issue horrendous (and other) decisions. So, listed below, are the names, appointing Presidents, and years of appointments of the judges in the majority and the judges in the dissent. You will find that there are judges on each side appointed by a (liberal?) Democratic president and by conservative Republican presidents. This is yet another piece of evidence favoring the idea that we have but one political party with two branches, and thus have a systemic problem.

Name Date of Appointment Appointing President
David Sentelle 1987 Reagan
Karen LeCraft Henderson 1990 GHW Bush
Raymond Randolph 1990 GHW Bush
David Tatel 1999 Clinton
Merrick Garland 1997 Clinton
Janice Brown 2005 GW Bush
Thomas Griffith 2005 GW Bush
Brett Kavanaugh 2006 GW Bush


Douglas Ginsburg 1986 Reagan
Judith Rogers 1994 Clinton*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com.

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