Jumping the Queue
posted by Frank Pasquale
The D.C. Circuit recently heard, en banc, the panel decision in Abigail Alliance, which tried to establish a constitutional right of terminally ill patients to access drugs that had passed Phase I clinical trials. Glenn Cohen gives a nice summary of the case and the issues it raises here. Both Eugene Volokh and John Robertson have examined how the decision could push regulations governing organ transplantation, stem cell research, and even medical marijuana in a far more libertarian direction. Even though many commentators doubt the controversial decision will stand, its resonance with a recent Supreme Court of Canada case makes me think its principles may influence American law in future cases.
In Chaouilli, the Canadian Supreme Court articulated a substantive right to pay for private health care, despite Quebec’s insistence that certain forms of private payment would divert resources from and thereby undermine its one-tier Medicare system. As Colleen Flood has documented, it is a deeply flawed decision, relying on questionable generalizations about the Canadian health care system and health policy generally. But the opinion rests on a visceral reaction that is hard to refute: when one’s life is at stake, taking virtually any measure that does not harm others seems appropriate.
So what’s the “harm to others” at stake in Abigail Alliance? Perhaps an “outsourcing of risk” from the wealthy to the poor. What will likely happen if anyone able to afford the “real thing” opts out of Phase II clinical trials? We already know that “Low-income individuals are more likely to sign up for [toxicity-detecting] Phase I medical trials and enroll in trials multiple times.” If Abigail Alliance stands, then anyone with enough money could opt out of Phase II trials (and the possible risk of being assigned to the control or comparator group). It presents one more way of tiering the medical system, and while that concern may not be enough to trump terminally ill patients’ right to treatments of choice, it certainly recommends some taxing of that tiering to redirect resources to groups hurt by it.
Is a similar harm at stake if Chaoulli is applied to all Canada? Tough question. To the extent that there is a relatively fixed amount of health services in Canada, the diversionary effect will be strong. If private health insurance manages not merely to fund more demand, but to induce more supply, we won’t have to worry so much. It is a difficult empirical question…but certainly the tiering of the U.S. health care system provides a cautionary tale.
Photo Credit: Flickr/PJS.