• In the “Land of the Free,” Americans have no right to choose treatments.
By James Spounias —
If you’re an American who is seriously ill and you want to use a health treatment not approved by the Food and Drug Administration (FDA), do you have the constitutional right to do so? The answer is no, according to the Supreme Court. How could this be? This is America, where our entire history is imbued with red-blooded notions of liberty, freedom and natural rights, given by God and reason.
It may seem shocking to those who haven’t researched the issue, but rulings from courts suggest that the power of the medical-industrial complex and government enforcers is sacrosanct when measured against an individual’s right to use medical treatments.
It begs the question: Do you own your own body when you run afoul of monopolistic big medicine?
Take, for example, laetrile. Patients who wanted to use this vitamin, also known as vitamin B17, sought to extend the right of privacy in the controversial abortion decision of Roe v. Wade to their own plight.
As a sports writer, journalist Tom Valentine wrote in 1966 about a patient’s success with laetrile, only to be condemned by the American Cancer Society as a “sports writer who thinks he’s a doctor.”
This sting spurred Valentine’s interest in so-called alternative therapies and he went on to cover the laetrile controversy in detail and became a frequent speaker and emcee at Cancer Control Society and National Health Federation events.
Glen L. Rutherford was diagnosed with adenocarcinoma in 1971 and was told he’d need much of his bowel surgically removed to survive. Rutherford refused surgery and received laetrile in Mexico, where he was treated for several weeks. After he returned, Rutherford had laetrile delivered to him in the United States until 1975, when it was seized as an unapproved drug.
Attorney Kenneth Coe of Oklahoma City represented Rutherford and others whose laetrile was seized. Federal judge Luther Bohanan ruled for the plaintiffs and against the FDA, noting, “Inaction by the FDA constitutes the crux of plaintiff’s dilemma.”
Bohanan added: “Plaintiff Rutherford and those similarly situated are wholly without means or resources to comply with the provisions of the [the Food, Drug and Cosmetic Act]” and wrote that “the evidence supported the findings that laetrile is not a toxic or harmful substance if used in proper dosage, but is on the other hand an alternative treatment of cancer, which can be used in lieu of surgery or radiation cobalt.”
In other words, a federal district judge, who is a finder of fact, got it right. He heard testimony from plaintiffs, the FDA and other experts and made a decision that no American should dispute.
Legal scholars quibble about whether the right of privacy established in Roe v. Wade is good law, but Bohanan referred to Roe in his decision: “This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Bohanan ruled: “Here the evidence is convincing that irreparable harm to the plaintiff overshadows the possible harm to the defendants or other interested persons. The plaintiff Rutherford’s cancer is presently dormant; however, there is danger of recurrence of the cancer unless plaintiff continues to receive treatment. In addition, the plaintiff in order to have and use B17 or laetrile is subjecting himself and his agent to criminal prosecution should plaintiff contravene prohibitions set out in §355 by making what plaintiff feels is a life-versus-law decision.”
In the Rutherford case there are no heart-wrenching metaphysical inquiries as to when life begins let alone whether abortion is murder or simply a medical procedure removing cells. Instead, Rutherford and other plaintiffs were ill adults who desire to use an unapproved treatment without bureaucratic roadblocks.
After losing at the district court level, the FDA appealed to the 10th Circuit Court of Appeals and the appellate court affirmed Bohanan’s ruling but did so on narrow grounds, avoiding the constitutional right finding for the plaintiffs.
The 10th Appellate Court wrote: “We are considering only cancer patients who are terminally ill and only their intravenous use of laetrile. Thus in this context, what can be ‘generally recognized’ as ‘safe’ and ‘effective’ means to such persons who are so fatally stricken with a disease for which there is no known cure? What meaning can ‘effective’ have in the absence of anything which may be used as a standard? Under this record laetrile is as effective as anything else. We are well aware of and have considered the arguments that some patients will be victimized by unscrupulous persons who will seek to profit by offering laetrile as a ‘cure.’ This is however not a legal matter, but an administrative or regulatory problem for the FDA.”
The FDA appealed this decision to the Supreme Court. Firebrand attorneys Coe, Kirkpatrick Dilling and Dennis Gronek represented the laetrile plaintiffs and in no criticism of their legal skills or arguments, the Court found for the FDA in a unanimous 9-0 decision. The court did not address any constitutional issues raised by Bohanan.
In other words, there were no flowery sentiments on “privacy” and the rights of dying cancer patients. Rather, they got a flat “no” to their desire to use unapproved treatments on the basis that the FDA should have the final say, irrespective of how twisted the logic of requiring an “approved” therapy for terminally ill patients, as advanced by the appellate court.
It is noteworthy that Justice Thurgood Marshall, a supposed harbinger of rights, wrote the decision for the Court, and was among the seven judges who had ruled previously in Roe v. Wade.
A devastating blow to the alternative health community, Rutherford left many patients seeking options to leave the country, thereby creating a medical tourism industry, or forced to find “underground” practitioners in the U.S. The pro-choice or pro-life community didn’t rally behind Rutherford plaintiffs. Neither did any of the elite media launch a campaign for medical rights of dying patients.
Legislative attempts to overturn Rutherford were spawned by Representative Berkley Bedell (D-Iowa), whose Access to Medical Treatment Act gained sponsors from left and right—from Representatives Dan Burton (R-Ind.) to Sheila Jackson Lee (D-Texas)—but never became law.
In 2007, the D.C. Circuit Court reexamined Rutherford in a case involving terminally ill plaintiffs who sought to use an experimental “phase 1” pharmaceutical cancer treatment, adding new constitutional arguments such as due process and right to life (5th Amendment) as well as privacy rights. The district and appellate courts ruled against the plaintiffs, finding there is no “fundamental right” to medical treatments and that the creative use of the 5th Amendment, securing “life, liberty” was “too strained.” The Supreme Court declined to hearing the case, affirming the D.C. Circuit’s ruling in favor of the FDA.
As we stand today, in 2015, the FDA does allow “compassionate use” exemptions for pharmaceutical treatments but make no mistake—you have no “right” to them or any “alternative” treatments.
It’s time for change.
James Spounias is the president of Carotec Inc., originally founded by renowned radio show host and alternative health expert Tom Valentine and his wife, Carole. To receive a free issue of Carotec Health Report—a monthly newsletter loaded with well-researched and reliable alternative health information—please write Carotec, P.O. Box 9919, Naples, FL 34101 or call 1-800-522-4279. Also included will be a list of the high-quality health supplements Carotec recommends.