Today the Supreme Court denied certiorari in Abigail Alliance v. von Eschenbach. The case involved whether a terminally ill person has a constitutional right to experimental drugs that have yet been approved by the FDA. A panel for the D.C. Court of Appeals held that such a right does exist, but the en banc court reversed.
I'll admit that several years ago I would have stated that the FDA's policy is unsound, but the Constitution doesn't address the issue. Now, I'm fairly uncertain on the issue. I don't think the Fourteenth Amendment's Due Process Clause applies, but the Ninth Amendment may.
The federales have some heavy hitters discussing this issue here.
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