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Wyoming Legislature to Consider “Right to Try”

The 2015 Wyoming Legislative Session is nearly one month away, and the Legislative Service Office (LSO) is busy finalizing bills and posting them online. Since this will be a full legislative session that will last 40 days, every bill will be introduced (in budget sessions every other year, a 2/3 vote in one house is required to introduce a bill). Although bills can die in many ways, usually in a general session each bill at least gets a hearing before its assigned committee. At the time of this writing, ten bills were available, already promising lively discussions on turning the Quebec 1 missile alert facility into a historic site and when to treat road kill as game. Perhaps most interesting so far, however, is Senate File 3, “Right to Try.”

The Right To Try Act would allow terminally ill patients to work with their doctors to try investigational drugs, biological products or devices that relate to their illness. That is, if after exhausting all other options a patient with a terminal illness wants to try a related drug that has “successfully completed phase one of a clinical trial but has not yet been approved for general use by the United States Food and Drug Administration [FDA],” a drug manufacturer may provide it to the patient. This places no obligation on the manufacturer, and the patient is expected to pay for it. (Coverage for clinical trials is already required for Wyoming group health insurance policies, but this bill states it does not “expand” the provision to individuals not included in such a study.) Finally, the law does not create a cause of action against manufacturers who comply with the law “in good faith,” basically saying one has a right to try but not necessarily to sue if things do not work out.

A similar Right to Try law recently passed by initiative in Arizona and is law in Colorado, Louisiana, Michigan and Missouri. The Goldwater Institute has taken point on the issue, which is certainly expanding discussion about health care freedom. Wyoming passed a Health Care Freedom Amendment in 2012 with 77% of the popular vote, and it now states in our state constitution that “Each competent adult shall have the right to make his or her own health care decisions,” and “the legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people.” (Art. 1, § 38.) WyLiberty worked on this bill in the 2011 general session, and I discussed its potential effects in detail in a Liberty Brief shortly thereafter.

Health care freedom is often used defensively. Since the Health Care Freedom Amendment passed, in discussions at the legislature the amendment has mostly been referenced when opposing new policies that would increase health care costs or otherwise inhibit patient choice. Right to Try is a departure from this, and offers a specific policy that advances health care decisions and the right of patients to make every effort to live. It makes a small step discussed in medical freedom zones, a (rather extensive) idea floated by Benjamin Barr and me three years ago.

Even if it passes, Right to Try is not without hurdles. The FDA maintains “compassionate use” standards, basically the power to allow or deny access to non-approved drugs or devices (this power also extends to controlling who may participate in clinical trials). It is also possible that even if Wyoming law enacts Right to Try that drug companies and device manufacturers will not act without FDA approval. However, compassionate use has received a great deal of attention lately, with individuals using social media to draw attention and criticize companies that do not provide an experimental drug or device. Furthermore, the more states that pass laws like Right to Try, the weaker the FDA’s position.

The discussion of Right to Try may bring discussion of related issues. Medical marijuana advocates may argue that pain management and the like are equally important (perhaps moreso) than risky last-chance efforts. (Sen. Bruce Burns, who is lead sponsor of the Right to Try bill, spoke in favor of medical marijuana last year.)  It is also possible that Right to Try will be connected with another issue: right to die. This would follow well-publicized advocacy for legalized assisted suicide for terminally ill patients by Brittany Maynard before she took her own life in Oregon (one of the three states with laws allowing the practice). Rep. Elaine Harvey—who is returning to co-chair the Labor, Health and Social Services committee—told CBS last month that right to die is unlikely to gain much ground in Wyoming. Nevertheless, it may be part of the discussion.

We will continue to follow the LSO as more bills become available, but Right to Try alone guarantees that the 2015 session will have at least one worthwhile policy debate grounded in fundamental principles.

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Monday, 25 September 2017
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