Should There Be a “Right-to-Try” For Terminal Diseases?


If you’re dying should you have a right to try unproven medical treatments? The Food and Drug Administration (FDA) has long taken the position that only they are qualified to make that decision for you.

Senator Ron Johnson (R – WI) introduced a bill in the Senate last August that would give people that right for the first time. The bill had 46 co-sponsors and passed by unanimous consent. When was the last time the Senate did anything with unanimous consent?

Yet, last week the House bill on this same issue failed when they tried to pass it as a “suspension procedure” that requires a two-thirds majority. The vote was 259 approved and 140 opposed (65% approval).

The bill effectively says if a very ill patient wants to roll the dice on a drug that has not been declared effective by the FDA, the government will not interfere. The drug must have cleared Phase I trials for safety.

The Wall Street Journal editorial board considers this political malpractice. They cite House Energy and Commerce Chairman Greg Walden for their disapproval. Walden narrowed eligibility criteria after the Johnson bill defined it as anyone with a “life-threatening” condition who has exhausted all other options.

What are the arguments of those who oppose this bill? It’s difficult to fathom why anyone would oppose such a measure, especially when the drug has already passed safety trials. Opponents of right-to-try tend to cite FDA’s “compassionate use” program that grants nearly all petitions for a physician to treat a patient with an unapproved therapy. Nothing in the bill prevents physicians from following this path if they desire.

But the bill also is a hedge against a future FDA that might turn hostile to patient choice. This could easily happen if single-payer healthcare becomes a reality as Democrats envision. Cost controls and government exclusions of treatments they consider “not worth the money” are common in single-payer systems in other countries like Canada and Great Britain.

It’s hard to believe a bill that passed through the Senate by unanimous consent could have real difficulty getting through the House. But such is our current culture in Congress. Democrats in the House opposed the bill the first time and may see it now as a wedge issue to demand concessions Republicans may refuse to give. If it is altered to overcome these concessions, it will have to be approved again in the Senate where there may be new opposition. Much better for the House to simply approve the Johnson bill and send it straight to the President for his signature.

Any delay could be deadly for some who are waiting for approval of their new treatments.

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