“Right to try” laws have become very contentious in recent years. Because we here at Logical Libertarian pride ourselves on being logical, as you can imagine, our position is that there are two opposing sides of the debate, and the truth is probably somewhere between these ideologies.

Both sides have very valid points, and should be considered. Sadly, what doesn’t happen, is both sides acknowledging the validity of the opposition’s argument, which then might lead to an acceptable solution they both agree is best.

So let’s explore…

First, in one corner, we have the proponents. These are largely libertarian-minded folks like myself. They rightly point out that the FDA approval process for new treatments or medicines is painfully slow.

They’re correct of course, but this is for good reason. When it comes to someone’s life, drugs and treatments shouldn’t be approved willy-nilly. If someone dies because a drug or treatment was harmful, we can’t exactly undo that.

But there’s another problem, even if the drug or treatment is benign.

If there is an approved treatment that works, but for whatever reason, the patient or their doctor don’t opt to use it, because they buy into this unproven and ineffective treatment instead, that ignorant choice could cost them their life. (See Steve Jobs choosing homeopathy for his cancer instead of chemotherapy—a decision he later admitted was wrong.)

Where these proponents are correct, are situations where someone has a treatment resistant issue, or an issue with no approved treatment, they’re potentially suffering from a terminal illness, and they’re open to try anything at this point to save their life. In this scenario, it seems to make sense to allow them to try unapproved treatments, because there’s simply no better option available.

I’m very sympathetic to this argument.

In the other corner, we have scientists. They argue that by allowing people to use these unapproved treatments, we’re opening the door to charlatans and snake oil salesmen, scamming desperately ill folks who are grasping at straws.

They’re 100% right that this does happen, and will happen at a higher level, if we allow “right to try” laws to pass unilaterally.

The FDA approval process is slow for a reason. There are multiple steps to show efficacy in non-humans, safety in humans, then eventually controlled studies with large sample sizes in humans. After that, it takes years to potentially understand the long term effects of these treatments.

Until scientists understand the mechanisms, outcomes, drawbacks, side effects, etc., giving doctors the green light to try these things, could do much more harm than good.

In a third corner, is me. A non-doctor, philosophical libertarian, who thinks there might be some middle ground which can be found.

My first argument is that unapproved treatments can be placed into four buckets:

1. Treatments with no studies/data supporting or rejecting them
2. Treatments with studies/data supporting them, but not enough to reach FDA approval yet
3. Treatments with conflicting studies supporting and rejecting them
4. Treatments with studies/data rejecting them

With these buckets, “right to try” laws could have different rules for each, that allay the fears of scientists, while ensuring the rights of people to try potentially promising treatments are also preserved.

Just to disclose my own bias, I think there should be a constitutional amendment forbidding government to get in between a patient and their licensed physician. When I say licensed physician, I’m referring to someone who went to medical school and has a license to practice medicine. Not homeopaths, naturopaths, chiropractors, or others who don’t have a license to practice medicine, but attempt to pass themselves off as “doctors.” I find such behavior reprehensible, immoral, and arguably criminal. They’re con artists if they actually know what they’re doing, and they’re ignoramuses if they don’t.

I know chiropractors are contentious, and some are certainly better than others. But unless they went to medical school and attained their doctorate,  which they didn’t, calling themselves doctors is misleading.

That said, some are at least honest that what they do, provide some temporary relief. But others claim they can cure diseases and such, which are the original claims of chiropractic. That has been thoroughly debunked, and is very irresponsible for any chiropractor to claim.

I hold this idea for an amendment, partly to preserve a woman’s right to have an abortion, especially if her health is at elevated risk. But more generally, just because I think government shouldn’t be passing laws preventing a doctor from performing a treatment that they, and the patient, agree is best for them.

That said, I think government’s most important job, is to protect us from those who would do us harm, including quacks recommending procedures that aren’t backed by an ounce of science (still thinking about Steve Jobs and his choice to treat his cancer with homeopathy).

So I’d reconcile these conflicts of protecting doctor-patient interactions versus protecting patients from malicious practitioners by outlining how I feel about the four buckets above. But understand that first and foremost, my argument to protecting doctor-patient interactions is only about actual medical doctors.

Other so-called health gurus should receive no such protections, and frankly, in my opinion, should mostly be tarred and feathered.

Bucket #1: Treatments with no studies/data supporting or rejecting them

If there are no studies/data supporting them, I’m curious why any doctor would recommend it. But I can imagine a scenario where a doctor has some reason to believe a particular treatment could work, despite no data on it, for or against. That seems to be significantly less likely than charlatans, though.

In this scenario, if a doctor is licensed, that doctor should be required to disclose quite clearly, that there is zero science supporting the idea. But, that the doctor suspects it might be helpful, explain their reasons why, and if the person is willing to take an absolute shot in the dark, then they may proceed.

Bucket #2: Treatments with studies/data supporting them, but not enough to reach FDA approval yet

This is the bucket that I think most people are envisioning when they think of “right to try laws.”

These would be medicines or treatments making their way through the FDA approval process, or being done in other countries with some success, but just aren’t approved here in the United States yet.

Again, let’s assume the position of a well-intentioned physician. They might see the data, and think there’s reason for hope with these. If there’s no approved option for this patient, and the patient has weighed the costs, risks, etc., then by all means, allow them to proceed.

Again, I think it must include full disclosure that it isn’t an approved treatment, and it should be viewed as something to try, only if there aren’t more effective approved treatments, which I think most doctors would choose anyway.

What could get tricky, is if there as an approved treatment that has a low efficacy rate, but there’s this new unapproved treatment that seems to show a much higher efficacy rate, what would a doctor recommend and a patient choose.

We hate to roll the dice on someone’s life, but it’s their life. I think again, as long as they’re well-informed, it should be their choice.

I don’t see an avenue for many charlatans on this path, as they tend to peddle in things which show no efficacy—if there were efficacy, it would be promoted by actual doctors.

Bucket #3: Treatments with conflicting studies supporting and rejecting them

This bucket is admittedly quite challenging. But in the end, since there are some studies showing efficacy, it has some level of hope or promise.

I’d again, make sure that the patient is made fully made aware of the conflicted status, a basic understanding of why it might work, and why it might not, the risks and side effects observed, etc.

From there, the patient can make an informed decision, and move forward.

Bucket #4: Treatments with studies/data rejecting them

For me, this one is pretty easy. It’s not like we don’t have data on these treatments—we do. They have been tested and failed every time.

Of course, any good scientist doesn’t deal in absolutes. Just because there’s no data supporting such treatments doesn’t mean they don’t work. It just means we have no reason to believe it does.

I don’t think any reputable physician should be prescribing such a treatment, and they should be excluded from “right to try” until there is some data to suggest they are safe and effective.

A doctor should inform the patient that such treatments have never been shown to be helpful, and that the doctor, in good conscious, wouldn’t recommend it, lest they be charged with malpractice.

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As you may have noticed, in each scenario, I focus on informing the patient thoroughly. This is how I propose the government protect the patient, without standing in the way of preventing a potentially life-saving treatment.

I think these buckets are important, because when many talk about “Right to try” laws, they tend to not differentiate between a treatment which is showing efficacy, versus one that has been thoroughly debunked—those two things should be treated quite differently.