Prop 303 – Right to Try

Nathan Erickson – Sandra Day O’Connor College of Law

The recent November 4th election in Arizona changed many things in Arizona. One bright spot for social justice was the overwhelming passage of Proposition 303 – the Right to Try.

The legislation gives terminally ill patients the right to try investigational medicines that have passed the first phase of FDV approval but still are still years from outright approval for general use. The law means terminally ill people don’t have to wait for new drugs to make their way through the long approval process. They can work with their doctors to gain access to promising investigational and new medicines now.

While the FDA does have a process that allows people to seek permission to take the drugs that have not yet been approved but have passed the first round, this process is long and onerous. Many people do receive FDA permission under this “compassionate use” doctrine, but there are many documented cases of people dying while waiting on their approval. The process takes around 100 hours to complete and only around 1,000 terminally ill patients received the expanded access per year.

With the new law, Arizonians can circumvent the FDA and go directly to the people working on the treatments. This allows the patients to connect directly with the most knowledgeable people to help them the most, and advances the medical science behind treatment for the terminal disease.

Critics of the law say that it gives false hope to terminally ill patients because it does not create a way for people to successfully obtain the therapies. Some insurance companies will not pay for the non-approved treatments or other roadblocks to treatment could exist. But proponents of the law simply respond that Americans should not have to ask the government for permission to attempt to save their own lives how they think is best.

Social Justice is advanced by the passage of the right to try law because this old impediment on healthcare freedom for those who need it most is now abolished. Terminally ill individuals are a group of people who society must be aware of and compassionate towards. Giving these people the ability to utilize scientific advancements, raise the level of their hope, and sometimes, unfortunately, simply go down swinging, is the best thing we as a community can do to help them.

The honorary chairman of the Prop 303 campaign was 13 year old Diego Morris. Diego had a rare form of bone cancer and left the country to get an experimental treatment in the UK which cured him. Diego says that hope was the most important thing to him and giving hope to others is what he thinks the right to try law will do.

Kathy Thompson, the mother of ALS patient Josh Thompson, says that when asking doctors about unapproved drugs she would get answers that the drugs might cause harm, but that was a risk that the terminally ill are often willing to take. Ted Harada, a survivor of ALS because of an experimental treatment, appreciates that the FDA is the gold standard for drug approval and safety, but asks if when you or a loved one were facing mortality, would you be willing to settle for the silver standard?

Overall social justice is about freedom, equality, and community. These are the principals that drive the right to try law. But even more so, social justice is about hope and when you have a terminal illness that is hard to come by. Passing this law gives Arizona a brighter future, a more just future and a more hopeful future.

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