On September 28, 2007, the Washington Legal Foundation submitted a cert petition to the Court portable solar power on behalf of Abigail Alliance for Better Access to Developmental Drugs. The Supreme Court is likely to decide by January whether to hear the case. A panel of experts including Vice President for Legal Affairs at Cato,Roger Pilon, President of the Ethics & Public Policy Center,Ed Whelan, Case Western University of Law professorJonathan Adler, and General Counsel for the Committee for Justice,Curt Levey, consider whether the terminally ill have a fundamental constitutional right to access potentially life saving drugs. Questions and Answers: Roger Pilon:The crux of the matter inAbigail Allianceis whether the right the Alliance is asserting is a "fundamental" right, the FDA's restriction of which must pass "strict scrutiny," or merely a liberty interest, subject to restriction under the "rational basis" test. That bifurcation of rights and judicial review was institutionalized in footnote four ofCarolene Products(1938), of course, although its roots can be traced toO'Gorman & Young, Inc. v. Hartford Fire Ins. Co.(1931), as Randy Barnett shows in an article forthcoming in theMichigan Law Review, "Scrutiny Land." Invented from whole cloth to make the world safe for the New Deal's regulation of economic liberties, those distinctions today are the stuff of modern "constitutional law," which connects with the Constitution only occasionally. And asAbigail Allianceshows, it's not economic liberty alone that is at risk in the regulatory world that unfolded after 1938.
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