Empty gesture: State's Right to Try law is bogus
Pennsylvania is on track to become the 34th state to pass a so-called “Right to Try” (RTT) law after a Senate vote on Monday. But the bill state lawmakers having given overwhelming support to isn’t the panacea it’s being sold as.
Critics of these RTT bills are correct when they point out that the bills are legally ineffective. Out of the 31 Right to Try bills that had been passed by states as of June 23, 2016, not a single one actually gave patients the right to access experimental medications or requires pharmaceutical and insurance companies to provide them access to experimental trials or treatments.
Not surprisingly, there hasn’t been a single substantiated case of any patient anywhere ever actually receiving access to unapproved drugs or treatments through these laws in the two years since the first RTT bill was approved.
The statute that was approved in the Pennsylvania Senate on Monday in a 49-0 vote isn’t any different. The bill, sponsored by state Rep. Robert Godshall, R-Montgomery County, was even amended by the chamber to use weaker language that Godshall originally proposed.
Instead of the law declaring that terminally ill patients have “a fundamental right” to experimental treatments, as Godshall wrote, the Senate rewrote the law to say they “should be allowed” to use the products and procedures.
This limp rubric doesn’t even qualify as “sound and fury, signifying nothing” — it’s just a bunch of nothing, no sound or fury included.
And while RTT laws don’t do much for the patients they purport to help, they’re very good at protecting the interests of big pharma and health insurance companies.
Godshall’s bill includes clauses that require patients to sign a consent form acknowledging that their eligibility for hospice or in-home care could be withdrawn if they start an experimental treatment, reaffirm drug makers’ total control over how much to charge for experimental treatments, and insurance companies’ right to refuse coverage for them:
“Nothing in this act may be construed to require a health insurer to provide coverage for any health care services ... that would not otherwise be a covered benefit under an eligible patient’s health insurance policy.”
So no mandate to provide terminally ill patients with experimental drugs or treatments, no guarantee that such treatments will be affordable IF drug makers and insurers deign to provide them in the first place, and no principled statement on whether access to these treatments should be a right for people who are terminally ill.
No wonder this bill has received overwhelming support in the General Assembly — it doesn’t actually do anything except reaffirm the rights of multi-billion-dollar corporations and attempt to circumvent a Food and Drug Administration “compassionate use” program that is vastly more successful at uniting desperate patients with experimental treatments than RTT laws will ever be.
At best this bill is an empty gesture. At worst it eliminates or circumvents vital patient protections, allows people to put themselves and their families at high risk for benefits that remain uncertain and unclear, and trades on the popular misconception that the FDA’s drug approval process is broken.
