The phrase “right-to-try” is nothing new. A “right to try” means that terminally-ill people should be able to waive ordinary laws and rules in order to access cutting-edge experimental treatments. With right-to-try laws passed in most states and by Congress, the idea may sound like old news.
Yet a closer look shows the right-to-try movement has barely begun. Under a New Hampshire bill introduced by Rep. Lisa Mazur, HB 701, the Granite State could become, overnight, the best jurisdiction in America for right-to-try and clinical trials for the terminally ill.
At the same time, New Hampshire’s unique geographic and political position gives our state revolutionary potential in experimental biotechnology. By raising the flag of compassion and life, the Granite State is poised to attract patients, innovators, and businesses from across the region and beyond.
Despite the prevalence of well-intentioned right-to-try laws around the country, in practice these laws have made almost no difference to patients. In my work fighting for the value of human life, I have talked with the parents and spouses of dying patients from around the country and heard their stories. The reality is that dying patients are spending their last months flying to so-called right-to-try jurisdictions, desperately offering all they have for experimental treatments, only to be turned away by providers and their cautious lawyers.
One by one, providers who have wanted to give experimental treatments have found themselves too paralyzed by the specter of civil liability—something not addressed at all in typical right-to-try laws—to administer the treatment.
One leading right-to-try advocate, Dr. Bess Stillman, fought alongside her late husband, Jake, to preserve his life. “We tried right-to-try,” she says. A physician herself, Stillman researched a promising treatment she thought might save Jake. She and Jake found a provider who could administer the treatment, offered to pay out of pocket, and were ready to sign any waiver the provider wanted. After consulting with his lawyers, however, the provider backed out. Giving the treatment to Jake would still be too legally risky. “Somehow, it was less risky to let Jake die,” she testified.
A second problem faced by right-to-try laws is that the most innovative jurisdictions in America are—to be blunt—in the middle of nowhere. New Hampshire, in contrast, sits at a one-of-a-kind crossroads.
The Boston metropolitan area is currently the largest single biotechnology hub in the world. While Boston-area innovators must jump through countless legal and regulatory hoops, they are providing some miraculous new treatments—such as the promising gene therapy received by Lucas Toro, a Duchenne muscular dystrophy patient now showing positive results.
Of all the states close to the Boston area, only New Hampshire has the raw political potential to build a legal regime so protective that it could draw innovation away from Boston. If New Hampshire took this revolutionary step, there can be almost no question: Boston-area innovators, many of whom are forty minutes from New Hampshire, would open second offices here. Providers and patients would come.
Rep. Lisa Mazur’s right-to-try expansion, HB 701, would do everything possible under state law to allow dying patients—through a process of informed consent—to forego the ordinary regulatory and legal rules and access the treatments they want, including by greatly reducing civil liability for providers.
At a hearing on HB 701, Rep. Mazur’s bill was opposed by one organization: an association of medical plaintiffs’ attorneys objecting that the law would limit their ability to sue providers.
Especially to some Democrats, the attorneys’ arguments seemed sympathetic. Civil liability is designed to protect patients, they point out. If we allow those patients to waive civil liability, some patients who suffer harm will have no recourse in New Hampshire courts.
Yet this is exactly why, in Dr. Stillman’s words, doctors found it “less risky to let Jake die” than to give him the treatment he wanted. While protecting ordinary civil liability may sound like a form of compassion for patients, in practice, it is actually a government mandate that dying patients must die. These patients desperately need a jurisdiction that will firmly protect their ability to waive regular civil liability and other rules, so they can, as a practical matter, access these treatments.
One piece of testimony in favor of Rep. Mazur’s bill was authored by a group of six sets of parents of children with rare genetic illnesses. “We appreciate that clinicians may be uneasy treating children with newly developed therapies,” they write. “However, we understand that if we do nothing, our children will inevitably die.”
Finally, a second argument used by plaintiffs’ attorneys invokes “federal preemption.” The argument goes like this: the federal government has many restrictive laws and regulations that govern experimental treatments. If New Hampshire does not take an equally restrictive approach, they say, we will be contradicting federal law.
This argument confuses the doctrine of federal preemption. “Preemption” does not mean that state law must be at least as restrictive as federal law. What it does mean is that, if the federal government chooses to enforce its own laws at its own expense, defendants—in this case, medical providers—cannot rely on less-restrictive state laws in court.
To see what this distinction means, look around at all our neighboring states. Illegally immigrating into the United States violates federal law—but it does not violate the laws of Vermont. In fact, Vermont expressly welcomes illegal immigrants. Under Vermont law, any police officer who helps deport an illegal immigrant is sanctioned by the state and usually fired.
In the same way, possessing marijuana is illegal under federal law, but is largely decriminalized in Massachusetts. Boston is brimming with stores and billboards selling marijuana.
Whatever you think of these policies, no court has ever held that Vermont or Massachusetts are violating “federal preemption” simply because the US government has more restrictive laws.
In HB 701, Rep. Mazur is using state sovereignty for good: making New Hampshire state law as protective as possible for experimental treatments. And instead of illegal immigrants and marijuana billboards, her bill will bring patients, providers, and innovators to the state.
If federal regulators have laws and rules that are more restrictive than ours, they will still be free—if they so choose—to address this with patients and providers at the federal government’s own expense. Let the feds tend to the feds.
By positioning New Hampshire as a biotechnology leader, Rep. Mazur’s bill will help to save lives in the Granite State and beyond. On Wednesday, the NH House HHS Committee will have an executive session on HB 701. Ask the House HHS Committee—especially Democratic legislators, who may be more swayed by the plaintiffs’ attorneys arguments—to vote for HB 701 as amended by Rep. Mazur.
