ABIGAIL ALLIANCE FOR BETTER ACCESS v. VON ESCHENBACH

No. 04-5350.

495 F.3d 695 (2007)

ABIGAIL ALLIANCE FOR BETTER ACCESS TO DEVELOPMENTAL DRUGS and Washington Legal Foundation, Appellants v. Andrew von ESCHENBACH, In His Official Capacity as Commissioner, Food and Drug Administration and Michael O. Leavitt, In His Official Capacity as Secretary, U.S. Dept. of Health and Human Services, Appellees.

United States Court of Appeals, District of Columbia Circuit.

Decided August 7, 2007.


Attorney(s) appearing for the Case

J. Scott Ballenger argued the cause for appellants. With him on the briefs were Daniel J. Popeo, David A. Price, and Richard A. Samp.

Brian P. Brooks and Arthur W.S. Duff were on the brief for amici curiae John E. Calfee, et al. in support of appellants.

John J. Edmonds was on the brief for amici curiae Emil Freireich and Stephen Strum in support of appellants.

Jonathan F. Cohn, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, Jeffrey S. Bucholtz, Principal Deputy Assistant Attorney General, Michael J. Ryan and Rhonda C. Fields, Assistant U.S. Attorneys, Mark B. Stern and Scott R. McIntosh, Attorneys, Daniel Meron, General Counsel, U.S. Department of Health and Human Services, Eric M. Blumberg, Deputy Chief Counsel for Litigation, and Karen E. Schifter, Associate Chief Counsel. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Samuel D. Turner was on the brief for amici curiae American Society of Clinical Oncology, et al. in support of appellees.

William B. Schultz was on the brief for amici curiae National Organization for Rare Disorders, et al. in support of appellees.

Before: GINSBURG, Chief Judge, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and KAVANAUGH, Circuit Judges.


Opinion for the court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge ROGERS, with whom Chief Judge GINSBURG joins.

GRIFFITH, Circuit Judge:

This case presents the question whether the Constitution provides terminally ill patients a right of access to experimental drugs that have passed limited safety trials but have not been proven safe and effective. The district court held there is no such right. A divided panel of this...

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