Last year the Abigail Alliance won a stunning decision from the DC Circuit Court of Appeals that dying patients have
a due process right to access drugs once they have been through
FDA approved safety trials. Here’s a sad update from Kerry Howley writing in the Aug/Sept. issue of Reason Magazine (not yet online):
After last year’s ruling in the alliance’s favor, the FDA argued that the group no longer had legal standing to sue it, since none of the patients who had signed the original affidavits were still members. They were all dead.
See FDAReview.org for more on the FDA.
You’ll have to dig deep to find a more calloused display of pique and legal angling. “Because our opponent was right and is therefore no longer here, they obviously forfeit the argument.”
* our best attempts to hasten their deaths
That is a legally bad argument, and the lawyers for the FDA should know it full well. Roe got many things wrong, but as for standing, if something is a recurring and repeatable problem for a class of people, standing can exist even if there is no chance that the problem will persist throughout the entire period of a lawsuit.
1) An argument against standing is not the same as an argument for mootness. Roe vs. Wade was decided after Jane Roe’s baby was born; the Supreme Court heard the case under the doctrine that many similar cases would occur in the future so mootness of the current case was not an issue. But formally, the case was still fought on behalf of Jane Roe, not some association of past and/or future pregnant women. Here, the FDA is arguing that the Abigail Alliance can’t sue on its own since it has no interest (in the sense of suffering damage) unless its members do; the members so affected are now dead, so the Alliance does not suffer damage from the FDA policy. This is a technicality, and it probably won’t work to get rid of the case, but it’s slightly different from a mootness argument.
2) Triticale: There really was a real-life example of the classic definition of chutzpah (the parricide looking for mercy from the court on the basis of being an orphan): Lyle and Erik Menendez murdered their parents, and upon conviction their lawyer asked that the loss of their parents be considered a mitigating factor in setting their sentences.
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