That right to life thing again

Under a Constitution that expressly protects the right to life, how did we get to where government can effectively restrict the right, and the courts will do nothing?

Blogging on Steroids® makes me a more loquacious blogger. Sorry for the post lengths. This was to be included in my earlier post. They are separate but related ideas. And I thought folks might need a breather.

After my rant on the roadblocks to self directed health care and rent seeking mechanism that the pharmacy laws represent, Cato's Roger Pilon writes a guest editorial in the Wall Street Journal (free link on Cato site). He touches on the pharmacy regulations as a side effect of my other favorite topic: the FDA's clearly unconstitutional restrictions of our right to life. A D.C. Circuit decision has not gone my way, but Pilon shares a striking dissent, written by Judge Judith Rogers and joined by Chief Judge Douglas Ginsburg.

Citing the Fifth Amendment's right to life, the Ninth Amendment's assurance to the Constitution's ratifiers that the rights retained by the people far exceed those named in the document, and the Supreme Court's "fundamental rights" jurisprudence, Judge Rogers argued that the right to life, the right to self-preservation, and the right against interference with those rights — which the FDA is guilty of — are of one piece. They are deeply rooted in common law and the nation's history and traditions, implicit in the concept of ordered liberty, and thus "fundamental."

Indeed, it is startling, she noted, that the rights "to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one's own body have all been deemed fundamental, 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." Because the rights at issue here are "fundamental," she concluded, the court must apply, in judicial parlance, "strict scrutiny." The burden is on the FDA to show why its interference is justified — to show that its regulatory interests are compelling and its means narrowly tailored to serve those interests.

Read this brilliant piece coast to coast, even if you don't then have time to read my whiny personal post below.

Pharmaceuticals Posted by jk at August 10, 2007 12:59 PM