On Saturday, I had a Rule of Law column entitled In Re: Life or Death in the Wall Street Journal on the issue of judicial deference (available here for 7 days). It addresses the following question: When the fundamental rights of life and health are at stake, should judges defer to Congress or to "the people themselves"? This issue is raised in two pending lawsuits involving the decisions of patients and their state-licensed physicians, who are supported in their decisions by either the results of Phase I clinical trials for safety or by a substantial body of medical authority. Here is an excerpt describing the cases.
Much discussion of "judicial restraint" or deference overlooks a crucial question: deference to whom — the legislature or the individual? This fundamental question is posed by two potentially landmark cases.
In Abigail Alliance v. von Eschenbach, a three judge panel of the D.C. Circuit Court of Appeals ruled that, when a drug passed Phase I trials establishing its safety, a terminally ill patient has a right to try the drug before its efficacy is established, provided the patient has no other FDA-approved drug available for treatment. However, two weeks ago the circuit granted the government's motion for an en banc rehearing before all the members of the court. . . .
The natural rights to life and health are also at stake in the "partial birth abortion" cases that were argued to the Supreme Court in October. The Eighth and Ninth Circuit Courts of Appeals both held the federal ban on partial birth abortion was unconstitutional because it lacked an exception for the health of the mother. While this procedure is highly controversial when performed late term, the ban applied throughout the entire pregnancy. Moreover, the statute allows even late term use of the procedure to protect the woman's life (the very same right to life at issue in Abigail Alliance).
Guess which form of judicial deference I favor.