Property rights vs. the flu

Matt Towery
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Posted: Oct 20, 2005 12:05 AM

I don't support the concept of government taking property from private citizens or others for supposed "better use." Opinion surveys say the public feels the same way.

 But two recent happenings illustrate the legal and moral complexities surrounding the concept of private property seizures.

 Recently, the U.S. Supreme Court issued a controversial ruling in which it essentially said government and government-controlled authorities in certain new situations have the right to exercise their powers of eminent domain and take property from private citizens.

 The idea is that this seizure of property is OK if its taking is properly compensated, if it is intended to "improve" the property and its surrounding area, and if it results in a benefit to the wider community.

 Hold off on the protesting e-mails for a moment. I admit I've boiled a highly complicated court decision down to layman's terms. But that's really the point -- to demonstrate how the issue is generally understood by the general public.

 The property seizure decision was greeted with outrage by state legislators and many others across the nation. Almost immediately, many attempts at inventing new legal protections for property holders surfaced.

 In most instances, this was smart politics. In many cases and places, it was also needed to preserve the public's staunch belief that the taking of property from an unwilling owner should be done only for some extraordinary public purpose. Prettifying a depressed area to boost land values isn't extraordinary.

 Ironically, while the Court seemed to have opened the door for legal encroachment on the rights of homeowners and small businesses, a Swiss drug manufacturer was sticking to the concept that its rights -- in this case, to maintain a lucrative patent -- should be preserved, even in the face of a possible disease pandemic.

 The pharmaceutical concern Roche holds the patent on a drug called Tamiflu. Only Tamiflu and one other drug offer true protection against the dreaded "bird flu."

 To date, this potentially deadly strain of influenza has been confined to a few Asian countries. So far, it has been transmitted to people only by contact with infected birds and not from one person to another.

 But it's possible the disease could mutate into a form passed among humans. Sensational international media coverage has posited this disturbing possibility.

 Until this week, Roche seemed resolved to zealously guard its patent. This despite the obvious need to step up production of the drug and to "spread both the burden and the wealth" in supplying adequate amounts of Tamiflu to places where it could potentially save countless lives.

 Being a Swiss business, Roche obviously isn't subject to the fashionable new concept in American jurisprudence that governments have the legal right to step in and simply take private "property" -- be it land or a miracle drug -- for the greater good of the public.

 This isn't the first time that Americans have found themselves at the mercy of foreign corporations in a matter of public health. Last year's scarcity of flu vaccine was the result of inadequate production by another foreign manufacturer.

 Following intense international pressure this week, Roche has indicated that it may be willing negotiate with other drug manufacturers to allow them to produce a generic version of Tamiflu that will allow for wider distribution.

 Think about it: Our courts are willing to allow the seizure of private property for the purpose of generally "improving" a portion of a community, yet a foreign drug manufacturer that relies on the United States as a consumer base is allowed to decide for itself whether it will allow its (intellectual) property to be taken in order to perhaps save hundreds of thousands of lives.

 Would the courts judge it a "right" for U.S. drug manufacturers and distributors to simply ignore Roche's patent in order to serve the greater public good of avoiding a possible worldwide health disaster?

 Again, public opinion polls say clearly that most people in most cases support the preservation of private property rights.

 I agree. But I'm not so sure that I'm for permitting foreign companies that live off of the good graces of the American marketplace to have the right to play hard to get while the clock ticks on toward flu season.

 To add insult to injury, we are already hearing about scattered shortages of flu vaccine this year.

 I'm starting to think that a compensated "taking" of needed drugs might be in order. That in exchange for foreign companies being allowed access to U.S. markets -- foreign companies that, in effect, put profits before the value of untold human lives.