We’re taking it on the chin in the “comments” over at the Volokh Conspiracy. Jonathan Adler linked to our post yesterday about the Abigail Alliance case, and the scholars are lining up to say that pharmaceutical companies are not “state actors” and so would never be compelled to provide experimental drugs to terminally ill patients. We really hope they’re right — but we’re still glad that it appears we’ll never have to find out.

C’mon, guys. First, the doctrine of “state action” is hardly a bright-line rule that gives a potential defendant any real solace. A private entity’s actions may become “state action” if the private entity (1) acts as an agent of government in performing a particular task delegated to it by government, (2) performs a function that is generally considered the responsibility of government, or (3) obtains substantial resources, prestige, or encouragement from its involvement with government.

When drug companies are conducting clinical trials — or selling drugs, or speaking about drugs, or maybe even thinking about drugs — the FDA is all over them like a cheap suit. Take a look at Title 21 of the Code of Federal Regulations. Why, the regs for clinical trials, Part 3.12, alone come to 37 pages of itty-bitty type. That’s a lot more intensive regulation than over, say, some poor schmoe who stupidly files a lawsuit to enforce a racially restrictive covenant.

We realize that no court has yet found a drug company to be a state actor in this context, but, until now, no one had created an environment in which scores of intelligent, motivated plaintiffs’ counsel would be pursuing multiple theories to try to achieve that result. As our full post (not just the excerpt posted on Volokh) discussed, even without the constitutional right there’s already been litigation — so far unsuccessful, to be sure — seeking to force drug companies to provide experimental drugs when they’ve decided to terminate clinical trials. This isn’t some paranoid fantasy, as some of the Volokh commentators suggest.

If a court were to create a constitutional right for terminally ill patients to ingest experimental drugs, cases asserting that right will (quite properly) hold immense emotional appeal for the plaintiffs. Lawyers will line up left and right to take those cases, and judges will bend over backwards to find a remedy. We’re litigators, that’s something we know.

And the judges who are doing the bending are not Jonathan Adler or Eugene Volokh or any of the other scholarly superstars over at the Volokh Conspiracy analyzing constitutional issues pitched right into their power alleys. They’re just plain judges, doing their best to wrestle with obscure constitutional issues that they haven’t studied since law school. (We’re reminded of the time a trial judge in state court in Philadelphia peered over the bench at one of us and asked, incredulously: “Is that a constitutional argument, counsel? We don’t do that stuff here.”)

We appreciate the constitutional subtleties involved in all of this, but, frankly, the companies put at the center of the fray — those who invent and manufacture the drugs — will spend years litigating their way out of this trap, if courts choose to create it. And even when they win, they lose, both in terms of $$$ spent on yet another way of keeping lawyers busy billing time, and in terms of bad publicity.

As we said before, let’s not create new constitutional rights to be defined through amorphous litigation. Instead, let’s have Congress pass a law that lays out rules — and rights, and protections — and thus create a legal environment that has some appropriate boundaries.