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Right to Try

Right to Try: A Fundamental Human Right

“Right to Try” is a relatively new way to express our fundamental human “right to life” and the “right to health.”

The purpose of Right to Try laws are to expand access to potentially lifesaving treatments years before patients would normally be able to access them. Last fall, an enlightened and extraordinary humanitarian bill, the Right to Try Act of 2017 sponsored by Sen. Ron Johnson (R-WI) and Joe Donnelly (D-IN) and co-sponsored by an additional 45 senators, was passed 94-1 by the Senate. On March 22, 2018 the US House of Representatives also passed it and on May 30, 2018 it was signed into law by President Trump.

The FDA approves, on an average, about 1,200 applications per year for expanded access (also referred to as “compassionate use”) treatments—a small number compared to 1 million patients per year that die of terminal illnesses and the tens of millions who suffer from life threatening diseases like congestive heart failure (6 million), Alzheimer’s Disease (4.5 million), and autoimmune diseases like diabetes, lupus and scleroderma. Add in cancer, opioid addiction and rare disease, and the right to expanded access at scale is paramount.

Historic Support for the Right to Try

Our rights to health and life are universally agreed upon. Internationally, this was first articulated in the 1946 Constitution of the World Health Organization (WHO) which states in the preamble, “…the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

The right to life and health was addressed yet again in the United Nations’ 1948 Universal Declaration of Human Rights, stating, “Everyone has the right to life, liberty and security of person.” (Article 3) and further, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family including food, clothing, housing and medical care…” (Article 25). Among many other similar declarations, the right to health was again recognized as a human right in the 1966 International Covenant on Economic, Social and Cultural Rights.

Today, “Right to Try” for terminal illnesses has been adopted with strong bipartisan support in 41 states and the Senate’s Right to Try Act of 2017 prevents federal agencies from interfering with the implementation of state-passed laws. An earlier precedent of the “right to health” was set by States, now numbering 31, that have passed Medical Marijuana laws to assist patients with seizures as well as other life threatening and debilitating conditions.

The DOJ and FDA have not interfered with either Right to Try or Medical Marijuana state laws as they are protected by the 10th Amendment of the US Constitution, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because the Constitution does not grant the Federal government any authority with regards to regulation of food and drugs, the Tenth Amendment explicitly leaves that power with the individual states.

This is important not just to the patients who have these well-established, deep-rooted rights to their health and life itself. There are approximately 75 million patients in our country that suffer from two or more chronic diseases, many of which are terminal or life-threatening illnesses. This segment of our population is estimated to cost the US healthcare system $2 trillion of our $3.2 trillion annual healthcare spend. Adult stem cell therapy and other novel but similarly safe options are the most likely solution to the vexing problem of people living longer but not better, costing taxpayers ever-increasing sums.

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