The argument made by the Abigail Alliance in court was that terminal cancer patients have a constitutionally protected right to access to experimental medications before the FDA approves them.
Specifically, the Abigail Alliance argued that the FDA should license drugs for use by terminally ill patients with "desperate diagnoses," after they have completed Phase I testing.
[5] In May 2006, the U.S. Court of Appeals for the District of Columbia ruled in favor of the Abigail Alliance and found that the US Constitution protects the right of terminally ill patients to access treatments that are not approved by the Food and Drug Administration.
The American Society of Clinical Oncology (ASCO) filed an amicus brief to the U.S. Court of Appeals in advance of the March 1 hearing, supporting the FDA's position.
ASCO proposed that the Constitution does not guarantee the right to access unapproved medications, and that the court case threatens the cancer clinical trial enterprise.