A Federal court overturned last year’s shocking decision from the DC Circuit Court of Appeals saying that dying patients have

a due process right to access drugs once they have been through

FDA approved safety trials. In January I wrote:

Unfortunately, I do not think that the Abigail Alliance can win the

case; recognizing the rights that the DC Circuit of Appeals recognized

would be too big a blow to our nanny state.

Thus I am a little disappointed but not surprised. I am pleased that the brief prepared by Jack Calfee, Dan Klein, Sam Peltzman, Benjamin Zycher and myself was cited in the dissent. The majority also avoided the sweeping policy generalizations that we wrote the brief to

discourage, thus I think we won a rear-guard victory and can keep up the battle on other fronts.

Thanks to Ted Frank for the pointer and his work behind the scenes.