1086
Stevens, J., dissenting
by protecting Benten from taking medication under the supervision of her doctor instead of undergoing an invasive surgical procedure. In view of the Government's "personal use exception" policy, expressed in the Federal Drug Administration's February 1, 1989, revision of its Regulatory Procedures Manual,* the only legitimate governmental interest that is now relevant is the interest in avoiding any "signifi-cant health risk" associated with the use of this medication when prescribed by a competent physician. There is no evidence in this record that Benten faces any such risk; indeed, on the specific facts of this case, the Government's purported interest actually supports her position. In all events, I am persuaded that the relevant legitimate federal interest is not sufficient to justify the burdensome consequence of this seizure.
Accordingly, I would grant the application.
*The Regulatory Procedures Manual provides in pertinent part as follows: "In deciding whether to exercise discretion to allow personal shipments of drugs or devices, FDA personnel should consider a more permissive policy in the following situations: "when the intended use is appropriately identified, such use is not for treatment of a serious condition, and the product is not known to represent a significant health risk." Ch. 9-71-30(C).
Last modified: October 4, 2007