My Tragic Encounter with Brett Kavanaugh Over Cancer Treatment

I wrote this article in August 2007 but never submitted for publication. Yet it is every bit as relevant today as it was then and will remain so as long as cancer and pain from cancer exist. The case I cite here was my own wife.

As background, I once held a high-level appointment by President Reagan, so I am not predisposed against Republicans. Still, I had a tragic experience with Judge [now Justice] Brett Kavanaugh that I would be remiss not to reveal. The Abigail Alliance, on whose board I sat, sued the Food and Drug Administration (FDA) over cancer patients not being allowed to use experimental drugs when no other therapeutic option existed, even when the FDA had found the drugs safe and promising. We argued that if people have a constitutional right to defend themselves against an attacker, why can’t they have that same right of self-defense against cancer? My wife had terminal lung cancer and had been given in a trial an experimental drug that extended her life and ended her chronic pain, which had required constant doses of morphine.

The case was heard in the D.C. Circuit Court of Appeals on August 7, 2007, with Judge Kavanaugh on that bench. When he spoke, I got excited, exclaiming to one of our attorneys that Kavanaugh “was saying the right things, asking the right questions.” The attorney responded (you don’t forget such devastation), “We won’t get his vote; he wants to be on the Supreme Court.” Apparently, ambitious judges knew what the establishment expected of them.

The case was considered relevant to Roe v. Wade, the landmark abortion case. What, I asked, does allowing experimental drugs to dying patients have to do with Roe? Answer: both cases had the same precedent. We argued that the decision about experimental drugs should rest with the patient and doctor, which is precisely the argument that Roe supporters make about abortion. By supporting doctor-patient authority over drugs, Kavanaugh would be seen as also supporting this authority over abortion in Republican circles.

Another judge on the panel, Judith Rogers, supported our case and pointed out a cruel irony: rejecting our appeal to extend cancer patients’ lives means that “the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life.”

Chief Judge Douglas Ginsburg also supported the right of dying patients to try to live longer and with less pain. He argued, Do we have a constitutional “right to eat meat” when the Constitution is silent on the matter? It is silent on drugs, which does not mean that we can’t take them. The right to take drugs is protected by the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Nevertheless, we lost the case, and I will forever recall the Justice Department attorneys gathering around the winning FDA attorney, smiling, patting him on the back, saying what a fine oral presentation he made. I wanted to ask them: “Are you pleased that today you put literally thousands of cancer patients to unnecessary pain and premature death?” That question should be asked of Justice Kavanaugh today.

Might Justice Kavanaugh vote differently today? Chief Justice Warren Burger, for and with whom I worked for nine years, wrote: “I have seen countless occasions [where data have] led a judge to change his or her position.” And, of course, Justice Kavanaugh now has no job promotion to consider.

It is naïve to think that public pressure has no potential to influence a judge’s opinion. Let’s start speaking up.