In 2007 the U.S. Court of Appeals for the District of Columbia Circuit ruled against a group of terminally ill cancer patients who were suing the FDA in order to gain access to experimental drugs that had the potential to save their lives. According to the D.C. Circuit’s ruling in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, however, nothing in the Constitution protects “a fundamental right of access for the terminally ill to experimental drugs.”

Writing in dissent, Judge Judith Ann Rogers, joined by Chief Judge Douglas Ginsburg, attacked the majority’s “startling” decision and its “stunning misunderstanding of the stakes” involved for the terminally ill. “To deny the constitutional importance of the right to life and to attempt to preserve life is to move from judicial modesty to judicial abdication, as well as confusion,” Rogers and Ginsburg declared.