Right-to-try laws are U.S. state laws that were created to let terminally ill patients try experimental therapies (drugs, biologics, devices) that have completed Phase 1 testing but have not been approved by the Food and Drug Administration (FDA). Because the laws do not require pharmaceutical manufacturers to provide the therapies that patients are seeking, their value has been called into question.
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States with right-to-try laws
In May 2014, Colorado became the first state to pass a right-to-try law. As of January 2017, 33 states have enacted such laws: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
Proponents
Right-to-try laws are immensely popular with both citizens and legislators, as they are viewed as offering terminally ill patients one last chance at saving their lives. The chief advocate of right-to-try laws is the Goldwater Institute, a libertarian think tank based in Arizona, which created the legislation template on which the state laws are modeled. Kurt Altman, national policy adviser for the Institute, has said that right-to-try laws return control of medical decisions "back to a local level". Other proponents include patients and their families, as well as patient advocate groups. Supporters of these laws sometimes describe them as "Dallas Buyers Club" bills, a reference to a movie about an American man with AIDS who smuggled unapproved treatments from foreign countries to fellow patients. Some have likened the efforts of terminally ill patients to procure unapproved drugs in development to those of ACT-UP and other AIDS organizations of the 1980s.
One ethical argument for the right to try unapproved treatments is that if patients have the right to die through physician-assisted suicide or voluntary euthanasia, they should also be afforded the right to try. Some argue that the right to die devalues the lives of people with terminal illness and tacitly encourages them to take their own lives, rather than advocate for them to seek potentially life-saving treatment.
Critics
Bioethicists and other scholars have questioned the extent to which right-to-try laws will actually benefit patients. Jonathan Darrow, Arthur Caplan, Alta Charo, Rebecca Dresser, and others have pointed out that the laws do not require physicians to prescribe experimental therapies, do not require insurance companies to pay for them, and do not require manufacturers to provide them. Because the laws do not actually provide a right to receive experimental therapies, they could be considered toothless legislation that offers only false hope to dying people. Even if the laws worked as intended, they would be problematic to critics. Because the laws require only that drugs have completed the first of three phases of clinical testing, there is no data on the efficacy of the drugs, especially in very sick people. There is also no safety data on how they would affect very sick people. This makes true informed consent on the part of the patient impossible, because informed consent entails, first, knowledge of the pros and cons of a proposed treatment and then a decision made in light of those pros and cons. Some states’ right-to-try laws also put patients at risk of losing hospice or home health care, and the costs surrounding treatment can be prohibitive, something right-to-try laws do not fix. Bioethicist Alta Charo called the laws “a simplistic way of going after much more complicated issues.” Medical and health experts have also voiced concerns. If the laws were to grant patients access to unapproved drugs, they could hasten death or cause increased suffering. Peter Temin wrote that “there is always a chance that any given drug will fail to cure a condition or will induce an adverse reaction,” such as becoming sick, or sicker, or even dying. Drugs that are not fully studied may lead to more adverse reactions in patients. The laws would also reduce much needed FDA oversight of drug regulation. Another criticism is that right-to-try laws are unconstitutional, because they involve states making rules that would contravene federal legislation. Various authors have predicted that right-to-try laws would be struck down if they were taken to court.
Future
In 2016, Houston oncologist Dr. Ebrahim Delpassand testified to a US Senate committee that he treated 78 patients for neuroendocrine cancer with LU-177 octreotate under the Texas Right to Try law, after the FDA refused permission to include those patients in the clinical trial that he was running. However, the drug's manufacturer, Advanced Accelerator Applications, has made this drug available through an expanded access program for patients with neuroendocrine tumors, so it is disputed whether this is a substantiated case of a right to try law being used to gain patients access to an investigational product.
A 2014 paper in JAMA Internal Medicine argued that right to try laws “seem likely to be futile.” Despite this, the laws remain wildly popular, and state legislators continue to introduce bills; as of November 2016, four states have right-to-try bills under consideration. In January 2017, a federal right to try bill was introduced in the Senate by Republican Ron Johnson of Wisconsin. A companion House bill was introduced in February 2017 and is currently in the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.