Beyond Abigail Alliance: The Reality Behind the Right to Get Experimental Drugs

One of the more exciting recent events in constitutional law has been the possibility of a newly coined constitutional right: a right of access to unproven medications. That intriguing possibility was quickly snuffed out, as the Abigail Alliance litigation drew to a close. But the issues that arose during that litigation remain important ones. This Article attempts to demonstrate that much of the claimed promise regarding a constitutional right of access to unproven medications is largely hype. For a variety of reasons, such a right is likely to have a relatively modest impact on the lives of most Americans. In contrast, however, the issue of access to unproven medications is already playing out in a surprising area that receives relatively little attention: participation in clinical research studies.