The Right to Try

On Wednesday, March 21st, the House passed H.R. 5247, the “right-to-try” bill. The bill gives terminally ill patients the federal “right-to-try” drugs that have been approved for Phase 1 clinical trials, but are still unapproved by the Food and Drug Administration (FDA).

The Senate unanimously passed a similar version of the right-to-try bill in August but the House subsequently rejected this bill on March 13th. The recently passed bill, H.R. 527, is the updated version of the original right-to-try bill. The vote passed by a 267 to 149 vote. Currently, different versions of right-to-try legislation exist in 39 states. The recently passaged legislation expands this right to the federal level.

In its simplest form, the right-to-try gives dying patients access to potentially life saving drugs that they would otherwise not be able to try. On average it can take the FDA 10-15 years to test and approve a drug. The lengthy process is due to the three phases of clinical trials and bureaucratic application and approval procedures.

In practice, doctors and their patients can bypass the stringent, and lengthy, FDA process for drug approval and deal directly with pharmaceutical companies to gain access to unapproved drugs, once the drugs have undergone preliminary safety testing. Most frequently, right-to-try is utilized on behalf of cancer patients who want to be enrolled in clinical trials.

In addition to increasing patient access to unapproved drugs, right-to-try laws also relieve doctors and pharmaceutical companies of liability should there be negative effects of the drugs. Right-to-try laws also prohibit the FDA from using data from right-to-try patients in negative outcome analysis.

Critics have two main critiques of the bill. First, critics are concerned over the safety of the experimental drugs and their potentially negative effects on patients who are not healthy enough to receive the treatment. Second, they argue that right-to-try is merely “feel good” legislation because the right to try is unnecessary. The FDA currently has a version of right-to-try called, Expanded Access or Compassionate Use. Both right-to-try and the FDA program allow terminally ill patients to try drugs that have yet to be approved by the FDA. According to the FDA, 99% of requests for Expanded Access are approved; however, this percentage does not include the number of requests that are dismissed because they did not meet FDA requirements.

With the restrictions and requirements the FDA imposes, less than 3% of those who want experimental treatment are approved. Right-to-try advocates stress the importance of expanding the access of potentially life saving drugs to the remaining 97% of patients who want to try them.

The Goldwater Institute, a libertarian think tank, was the driving force behind the right-to-try bill. The Goldwater Institute states that “everyone deserves the right to try,” as people possess the fundamental right to try to save their own lives. Since the bill’s inception, the bill has gained notable support from Vice President Pence and President Trump. Trump publically supported the bill at the State of the Union in January, “People who are terminally ill should not have to go from country to country to seek a cure,” he said. “I want to give them a chance right here at home. It’s time for Congress to give these wonderful, incredible Americans the right to try.”

The Goldwater Institute lays out the necessities for the right-to-try.

  1. Most terminal patients cannot participate in clinical trials because they are too ill to be selected;
  2. Most terminal patients do not have access to these treatments once the clinical trials are over;
  3. The FDA’s Expanded Access plan is insufficient because it is time-consuming, expensive, and involves a complicated application process;
  4. The FDA approval process takes too long to approve promising medications and in some cases can take more than ten years;
  5. Patients should not have to ask the government for permission to save their own lives.

For these reasons and more the right-to-they has become a powerful piece of legislation on patient rights. The latest version of the bill will now go to the Senate to be disused, and hopefully passed.

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