Thursday, August 9, 2007

The Coldest Monster, The Cruelest Slavemaster

Abigail Burroughs, seen here before cancer ravaged her body, died at age 21 after pleading unsuccessfully to use a promising drug called Erbitux, then in final clinical trials but not yet approved by the FDA. Months after Abigail's death, the FDA granted approval amid geysers of self-laudatory praise for making the "life-saving" drug available. Rather than tracking down and beating the tax-fattened bureaucrats who helped kill his daughter -- as he was morally entitled to do -- Abigail's father Frank created the Abigail Alliance for Better Access to Developmental Drugs.



It's not that often that we can say with perfect confidence that a judicial ruling will lead directly to the needless agonizing deaths of innocent people. The U.S. Court of Appeals for Washington, D.C. handed down just such a ruling (.pdf) in a case brought against the FDA by the Abigail Alliance for Better Access to Developmental Drugs.

Bobbing in the porridge of intellectual perversity served by the court is this particularly unpalatable morsel: "[C]reating constitutional rights to be free from regulation based solely upon a prior lack of regulation would undermine much of the modern administrative state, which, like drug regulation, has increased in scope as changing conditions have warranted."

From this single observation we can extract the logic (if that word can be tortured into applying here) of the entire ruling:

*Constitutional rights are a government artifact, "created" primarily by the courts.

*Since "rights" are creations of the State, they can be summoned into existence, summarily abolished, or modified as the government sees fit, in order to serve the State's "compelling interests."

*The fact that certain freedoms have been historically exercised by Americans -- such as the right to seek alternative treatments for life-threatening conditions, a right exercised by Americans without qualification for most of our nation's history (from the colonial period until 1962) -- is of no consequence when the State decides to expand its own regulatory mandate.

*If, in defiance of the foregoing assumptions, terminally ill patients are permitted to exercise ownership over their health by seeking treatments not approved by government, then the entire rationale for the "administrative" State will be fatally undermined. It is better that we let a few innocent people die in agony, than to permit the State's regulatory powers to be undermined in any way.

Not surprisingly, the court tried to buttress this argument by invoking that all-purpose exterminator of liberties, the "War on Drugs."

If there is a "deeply rooted" right to experimental drugs and other treatment, the court sneers, shouldn't there likewise be a "deeply rooted" right to use marijuana and other narcotics, which weren't subject to federal regulation until 1937?


Well, now that you mention it, the constitutional case for regulating drugs of any kind is thin enough to make Keira Knightley look zaftig by comparison. Operating on such a slender pretext, the State has grown obese and murderous. And the war on narcotics, predictably, has expanded into a war on non-sanctioned medical treatment.

For the DC Appeals Court, the default setting is "paternalistic authoritarianism," which is why sees nothing amiss in decanting lines such as this:

"A prior lack of regulation suggests that we must exercise care in evaluating the untested assertions of a constitutional right to be free from new regulation."

The only way this can make sense if one assumes -- contrary to the text and history of the Constitution (particularly the Ninth Amendment), the commentaries of those who drafted it, the recorded debates of those who ratified it, and the common sense invested in each of us by our Creator -- that individual rights, rather than grants of government power, must be specifically enumerated.

In that mental universe, it is freedom, rather than power, that must be justified. This includes the liberty of peaceful, law-abiding people who suffer terminal illnesses, acting with full knowledge of the risks, to make use of promising experimental drugs that haven't yet earned the unqualified approval of the regulatory bureaucracy.

The court complains that, in essence, "the Alliance insists on a constitutional right to assume any level of risk." Well, why the hell not? If someone confronts the prospect of a lingering, painful death from a terminal disease, doesn't that person have the right to take any risk he deems appropriate in seeking to defeat the disease?

According to the court, the answer is "no" -- because it is the State, acting through the legislature and the regulatory apparatus, that makes "value judgments" of this sort, and the suffering individual has no "constitutional right to override the collective judgment of the scientific and medical communities expressed through the FDA's clinical testing process."

The candor with which the court emits such collectivist nostrums is amazing. And undergirding them is the tacit but unmistakable understanding that from the court's perspective, the State owns each of us, and as slaves, we must defer to the State's power to do as it sees fit -- no matter what needless cruelty results.

In a dissent that is as intellectually taut as the majority opinion is flaccid, Judge Judith Rogers italicizes the obvious -- namely, that the "right of a person to save [his] own life," which was entirely ignored in the decision, is the fundamental human liberty. An illustration of the court's alienation from reality is found in the fact that Rogers considered it necessary to fortify this "Well, duh" proposition by supplying quotes from Blackstone and Samuel Adams on the subject.

It is because of the centrality of this right that "the Alliance's liberty claims are not grounded in the abstract notion of personal autonomy, but rather in the specific right to act to save one's life," Rogers observes. "While the potential cures [that haven't completed FDA testing] may not prove sufficient to save the life of a terminally ill patient, they are surely necessary if there is to be any possibility" of doing so, she contends.

The basic defense of the institution of government is that it is necessary to protect the life and liberties of the individual. Yet in this case, the State is found "interposing itself between a terminally ill patient and [that patient's] only means of prolonging [his] life," a practice that "runs counter to the common law's historical prohibition on interfering with rescue."

Interposition, in the Common Law tradition, was a practice intended to protect the innocent from the lawless violence of others -- not to forbid the innocent to take action to save themselves.

Rogers' dissent is already justly famous for its meditation on the lethal irony of contemporary judicial doctrine regarding "rights":

"In the end, it is startling that the oft-limited 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 even if it results in one's own death or the death of a fetus have all been deemed fundamental rights ... 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."

The problem here is one not properly perceived by either party in this case, or by either faction on the court: The 1973 Roe v. Wade decision effectively nullified the right to life, not just for human individuals within the womb, but for any class of people who can be written off as non-"viable." Roe did not specify that human "personhood" begins at birth; it simply said that it doesn't occur anytime prior to birth:

"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

In 1982, the lethal logic of Roe was used to justify the eugenic murder of "Baby Doe," an infant born with Down's Syndrome and a defect of the esophagus who was allowed to starve to death rather than undergo rudimentary surgery that would have saved his life. The assumption was that the newborn -- who was unambiguously a human person -- was not "viable" because he would suffer from severe retardation unless he was murdered.

A similar approach was taken in the case of Baby Jane Doe, a New York infant born with spina bifida whose parents declined to seek relatively simple surgery to close the spinal lacuna -- and then set about the task of killing the girl by degrees through calculated, and State-authorized, lethal neglect. The girl's spinal column later healed itself, prompting the parents to seek appropriate medical treatment. But in those cases, a clear precedent was established expanding Roe's license to kill to include vulnerable people who are fully born.

Given this history, it beggars comprehension that the Abigail Alliance's legal strategy in seeking to vindicate the right to life was based on a novel reading of Roe and its (if you'll excuse the expression) offspring: The intention was to demonstrate that (in Judge Rogers' words) the Supreme Court "has developed a sizable body of law regarding the right to a potentially life-saving medical procedure" -- that is, "therapeutic" abortion -- "when the life or health of a pregnant woman is on the line."

Trying to extract a life-affirming line of reasoning from Roe is like seeking to obtain grapes from thorns, figs from thistles, or wisdom from Sean Hannity. It simply cannot happen,because everything reproduces after its kind, and Roe was the grand ancestor of every contemporary manifestation of the Culture of Death, including the capricious denial of medicine to desperate, terminally ill people.


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12 comments:

Anonymous said...

It appears that it comes down to who owns you. The State believes it does and shows it by not letting you take risks with your own life, taking your money and letting you keep only a portion, drafting you into service, etc. As Ron Paul has said many times, he wants to give us back our lives, our freedoms, and allow us to take responsibility for ourselves, not be parented by an out-of-control monster.

Congress, of course, has also been diligent in buttressing the FDA to the point of preparing to regulate out of existance any natural remedies, vitamins, herbs, etc.

As Princess Leah (sp) said, "Help us, Ron Paul, you're our only hope."

Lou

dixiedog said...

Yes, Will, I agree that your examination of this case is dead on, but this is just yet another of many ominous results to be expected now that we're reaping what was sown with Roe v Wade: an insidious "Culture of Death." Terri Schiavo was also swallowed by it and more will surely follow.

It's ironic that some of the very people that are chomping hardest at the bit about the tyranny of Bushevik earnestly claim they would otherwise support Ron Paul, BUT...BUT....but for his social positions.

Like this excerpt from Ron Paul: A Conservative for the MTV Generation by Peter Sasso of Human Events culled from The Right Source:

We want the baby boom generation to stop sleeping at the wheel because it is our generation that is the roadside crew cleaning up the mess their idiocy is leaving behind. In other words, we want many of the same things Ron Paul wants. I have not decided who to support for President and considering his positions on social issues, I doubt it will be Paul. However I know many of my friends have made up their minds and theyre going with Congressman Paul.

Sigh, it's clear that this fella and his contemporary "MTV generation" comrades are clueless. Perhaps Dr. Paul understands something about true freedom and liberty that this fella fails to grasp. He wails against the boomers, who indeed began the social upheaval in earnest that seeded many of the social policies and culture we see now reaping the whirlwind today. Yet, he and presumably the vast majority of the "MTV generation" support the social liberalism and attendant policies. An oxymoron.

If it weren't for the social programs that are so ingrained into our consciousness today, government wouldn't be anything like the Leviathan that is now slowly choking our freedom right out of us, all things considered.

I think many folk still don't realize, for whatever reason, that economics and behavior are tied together; that being economic realities guide or heavily influence behaviors. Yes, this reality also applies to those who otherwise have a moral compass guiding them to some degree.

Ergo, I have to laugh when I hear someone say, "I'm a social liberal, but a fiscal conservative." Pure unadulterated nonsense! Another oxymoron. If this government was run by fiscally conservative politicians then, by default, our economic policies would not eliminate, but would certainly thwart liberal (illicit, do-what-you-want) behavior because government, being full of real "fiscal conservatives," would not force others to PAY for the consequences (i.e. illegitimacy, prescription drugs, etc., etc.) of those attendant loose behaviors.

That is, for the sake of clarity, IF one was truly a fiscal conservative "dictator" let's say. The people you rule over would be forced to get their act together by the economic realities they face since the government isn't PAYing for the consequences.

One can't say they believe in "live and let live" society, yet keep any kind of so-called "safety net" handy and in place, and then expect the increasingly morally rudderless commoners to "live and let live" responsibly. They know the consequences of their behaviors will be PAID for, if there's any "safety net" at all, or there would be social upheaval on a grand scale. It simply wouldn't work.

This is not unlike how government gained ground in other areas. With children, for example. It went something like this:

Actions taken -> Ban corporal punishment in schools. Discourage and/or in some cases ban "harsh" punishment (.i.e. spanking) in the home.

Results -> Several untenable situations soon develop. Teachers can no longer keep order in the classroom, parents likewise can no longer meaningfully discipline their own children at home without excess grief at least, or jailed for "child abuse" at worst.

An undisciplined child can run wild and vandalize other's personal property and the parent would normally (in a former era) be liable to pay for this costly misconduct by a child or youngster 18 or younger. Not now, since remember that the parent is heavily discouraged from disciplining their child(ren).

Government solution -> Drug 'em up with Ridalin and psychotic drugs. Indemnify parents from lawsuits brought about by victims of vandalism or property damage wrought by those parents' children from ages as young as 12 in some states. Victims now have to either brush it off, forget it, and pay for their own remedy if they need their damage repaired or they can wait "patiently" and sue the child when they reach 18.

There's a whole host of such "connect-the-dots" scenarios in different arenas of life of how government manages to insinuate itself into more and more of the fabric of daily life that one can easily distill out if they stand back and look at the "total picture" and connect the dots.

Dr. Lenny said...

dead on - but did we really need yet another foundation running on system support as the only means of getting the action done? Dixiedog is also dead on - the system cannot self-correct via fiscal conservatism and social liberalism. Total paradigm shift to show responsibility for oneself or perish seems to be the default state if the system collapses. What would happen in any major city if the trucks couldn't carry in food? Nature tends to have a built in redundancy - the one size fits all single system we have now is ready to burst at the seams.
Ron Paul can do it, with the help of we the people, but where are the heads of the people right now? It certainly is not self-directed, self-organized daily life. There is much religion in science, but not of the spiritual sort. Perhaps science with a spirit, where humans are mentally supported by the system rather than drained by it is a potential future system. Each person who thinks will likely think up their own survival system, cause we, the people, cannot allow this police state any longer.

Jerri Lynn Ward, J.D. said...

"The problem here is one not properly perceived by either party in this case, or by either faction on the court: The 1973 Roe v. Wade decision effectively nullified the right to life, not just for human individuals within the womb, but for any class of people who can be written off as non-"viable." Roe did not specify that human "personhood" begins at birth; it simply said that it doesn't occur anytime prior to birth."

I agree. This is also the premise underlying "futile care theory" which is what killed Terri Schiavo. It is being applied regularly to patients who are being denied life-sustaining treatments that they and their families want.

I blame this the state. Medicare and Medicaid (and the FDA) have degraded medical ethics beyond recognition.

Anonymous said...

Applying the state's logic, it should also be illegal to use an unapproved ladder to save the life of someone dangling from the ledge or window of a building engulfed in fire. Allowing such acts could endanger the lives of those about to plummet to their deaths. It's better that individuals die horrible deaths while obeying the letter of the law than stepping onto a potentially risky device that hadn't yet met full government approval. Thankfully, government isn't currently engaged in a war on ladders.

D. Saul Weiner said...

Excellent commentary.

I would only take issue with one point, that "the right to seek alternative treatments for life-threatening conditions" was intact in the U.S. before 1962.

Unfortunately, this type of tyranny goes further back. For an excellent analysis, watch the documentary Hoxsey: How Healing Becomes a Crime. Rent via Netflix or you can watch online via the link below, though picture quality is imperfect.

http://video.aol.com/video-detail/id/1960653781

Dave Weiner

quasibill said...

I'll quibble with some of the comparisons to Roe and the Schiavo case - if the question is "who owns your life?", Roe and Schiavo are examples of the answer being "not the State." If we are talking about an incompetent person, someone must possess both the duty to care for them and the power to make their decisions. If someone else wishes to take on the responsibility !on their own dime!, they may petition for "custody" and assume both the power and the responsibility.

In Roe, the answer was "the mother of the unborn child." As morally repugnant as some of the justifications and rationales that currently surround abortion proponents are, I think that this is the proper answer. The mother is the person who has both the power and the responsibility. As far as I know, the state only wanted the power, not the responsibility (as if the state ever takes responsibility).

In Schiavo, Terry had made her decision to marry her husband and leave her parents' family. Once again, the husband is the proper person to be making the decision. Absent a showing that he was abusing his power, or possibly that the parents were willing to assume the responsibility (they weren't, they planned on getting the state to pick up the astronomical tab), he had the power, not the State, and not those who use the state to further their own agendas.

This is all obviously different from Abigail, who was an adult, capable of making her own decisions regarding her life.

Jerri Lynn said...

"If we are talking about an incompetent person, someone must possess both the duty to care for them and the power to make their decisions."

God's law does not permit the person possessing said duty and power to kill the incompetent person. Even with regard to the incorrigible (adult) children that the Bible speaks of being subject to the death penalty, the parents did not have the power to either judge or execute them. Civil law should not allow husbands to bring about the deaths of their wives or parents their children (including unborn ones).

In Terri Schiavo's case, she had ample funds from the settlement of her lawsuit for investment to support her for the rest of her life and allow her to receive rehab and care. Instead, it was spent on the proceedings of probate court. Probate courts have become little more than gravy trains for lawyers and professional guardians and guardian ad litems.

The State also played a huge role in her death because it redefined food and water to be medical treatments if administered by tube. Denying a person food and water should not be considered "refusal" of "medical" treatment.

Insofar as Terri's parent expecting the State to "pick up the tab" of "astronomical expenses", I don't believe that to be the case. The husband, despite Terri's settlement money, managed to get her on Medicaid. The parents planned to bring her home and care for her themselves.

Her needs were neither expensive or complicated. She required help with the activities of daily living, food and water and repositioning. Her parents intended to do these things for her.

quasibill said...

"Her needs were neither expensive or complicated."

Actually, feeding through a tube (since she had no feeding reflex in her esophagus) is VERY expensive AND complicated, requiring constant monitoring, cleaning, etc. to prevent infections and ulcerations.

It is not something that can be done at home - if they were planning on doing that, they were just as surely going to kill her (through infection or internal bleeding) as her husband did.

"Civil law should not allow husbands to bring about the deaths of their wives or parents their children (including unborn ones)."

Neither should it impose positive duties of support and care for other people - from whence all welfare state policies spring. If you are the repository of the duty to provide for another, you have the right to make decisions for them. If you don't have the right, you don't have the duty - meaning, you don't the duty to pay for their food, or provide for it in anyway.

"The State also played a huge role in her death because it redefined food and water to be medical treatments if administered by tube. Denying a person food and water should not be considered "refusal" of "medical" treatment."

I actually agree that the idea of letting her starve was somehow more moral than killing her mercifully is totally backwards. But that's the point - If you have a duty to provide, you also must have the ability to determine when your provision is not in the best interest of your ward.

Can people abuse this? Yes. But it will be better results more often when you leave these decision with the ward's families (who have actual feeling for them) as opposed to the minions of the state (DAs) who really only care about scoring political points.

Jerri Lynn said...

"Actually, feeding through a tube (since she had no feeding reflex in her esophagus) is VERY expensive AND complicated, requiring constant monitoring, cleaning, etc. to prevent infections and ulcerations.

It is not something that can be done at home - if they were planning on doing that, they were just as surely going to kill her (through infection or internal bleeding) as her husband did."

Tell this to the scores of people who live at home and are tubefed. In case you wonder how I know, I represent long term care providers and have to know some of the medical. Some of my clients run group homes that are not staffed by medical providers, but that have tube fed clients. I've also have represented tubefed clients who resided at home.

I'll stay away from what appears to be your support for euthanasia as I find the whole idea too repugnant to discuss. I'll just add that she did not starve to death. She thirsted and dehydrated to death.

One of the purposes of civil government is to protect the lives of its citizens and to punish killers. Families have no right to kill their family members--whether by passive or active euthanasia.

quasibill said...

"Tell this to the scores of people who live at home and are tubefed. In case you wonder how I know, I represent long term care providers and have to know some of the medical. Some of my clients run group homes that are not staffed by medical providers, but that have tube fed clients. I've also have represented tubefed clients who resided at home."

Well, it still requires training and constant support. Unless her parents were independently wealthy, they would have had to go on welfare to provide. But no matter, the underlying point is that if they were actually agreeing to take the responsibility upon themselves, I would've allowed them to.

"I'll stay away from what appears to be your support for euthanasia as I find the whole idea too repugnant to discuss."

Well, then, I'll stay away from your support of fascism over family, as I find the whole idea too repugnant to discuss. I guess that's a deal.

Jerri Lynn said...

"Well, it still requires training and constant support."

Tube feeding is done 3 times per day in a case like Terri's--breakfast, lunch and dinner. They are already trained. She lived with them and the husband for a while at the beginning of this.

"Unless her parents were independently wealthy, they would have had to go on welfare to provide."

They are retired.