Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach

ROGERS, Circuit Judge,

with whom

Chief Judge GINSBURG joins, dissenting:

Today, the court rejects the claim that terminally ill patients who have exhausted all government-approved treatment options have a fundamental right to access investigational new drugs. The court’s opinion reflects a flawed conception of the right claimed by the Abigail Alliance for Better Access to Developmental Drugs and a stunning misunderstanding of the stakes. The court shifts the inquiry required by Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), by changing the nature of the right, by…