Much of the political activity in our country has moved from Washington, D.C. to the states. Intuitively, it seems easier to get a bill passed one time that covers the nation, and it used to be that way, but now the shorter road is to pick off states one or a few at a time to achieve the same end. This is particularly true of cultural issues. Michael Bloomberg, for example, has moved his gun control money to state projects. It is harder to defend against these state level efforts, particularly those with great gobs of out of state money behind them. Other causes that have made gains at the state level including bills legalizing physician assisted suicide, the use of medical marijuana, and the right to try potentially life saving experimental drugs. A major player at the state level is Arizona’s own Goldwater Institute located in Phoenix. The Goldwater Institute is self described “research and legal center.” The state level is more than a tactical choice for Goldwater, it is a natural place for those working to preserve our form of government. Presidents and legislators do not have rights regarding their jobs, they have authorities. Governments do not have rights, they have jurisdictions. Taking battles to the state level has the additional benefit of reasserting the jurisdictions of the states and curtailing federal government overreach. In our system, the jurisdiction of the states is broad and unspecified while the federal government’s jurisdiction is narrow and specific.
CULTURE OF LIFE
Darcey Olsen, president of the Goldwater Institute, has been promoting “Right to Try” laws at the state level. Right to Try laws would allow terminally ill patients to try promising drugs that have yet to be approved by the Food and Drug Administration. Don’t worry about conmen promoting snake oil, only drugs that have passed FDA safety tests and remain in the approval process qualify, but with FDA approval often taking over a decade, and with costs upwards of two billion dollars, availability is still along way off for the vast majority of terminally ill patients.
The concept actually goes back to the eighties when AIDS patients who were facing certain death demanded access to drugs that were in the FDA approval process. The FDA responded with its Expanded Use, commonly referred to as “compassionate use,” program that gave AIDS patients access to drugs still in testing. Since then however, the FDA has been less inclined to make drugs which are still undergoing testing available to the terminally ill.
There is a perverse incentive structure that is built into any organization of the FDA’s type. If people die because of the time involved in the approval process, they remain unknowns. If people die from an FDA approved drug, it is front page news complete with poster child and the fingers are pointed at the FDA. Since there is an incentive to keep drugs off the market, completing the approval process is difficult, expensive, and lengthy in time.
The FDA recently stated that if has improved its Expanded Use program, but it is still only available to about one thousand participants while around a million people die or are diagnosed with terminal illnesses each year.
Many critics of the Right to Try movement point out that states can pass all the laws they want, but the FDA still controls the drugs. However, as the Goldwater Institute points out, “FDA regulations cannot preempt state laws that preserve constitutionally protected rights, such as the fundamental right to life and medical self-preservation. The United States Supreme Court has never addressed Right To Try specifically, but it has held that states have great latitude in regulating health and safety, including medical standards, which are primarily and historically a matter of local concern”.
Right to Try laws have been signed into law in 24 states, including Arizona, and more are considering them.
CULTURE OF DEATH
The first victory for the Death with Dignity movement was a law passed in Oregon in 1997, and it is a far cry from pathologist Dr. Jack Kevorkian’s method of setting up a lethal drip, have the patient turn it on, watch the patient die, then call the authorities. The Oregon law allows qualified patients to request a prescription from a doctor that the patient will self administer and will cause death. There are many checks in the process. For example, a patient must be a resident of Oregon, must be an adult of sound mind, must be diagnosed with a terminal disease that will lead to death within six months, must make both an oral and written request of the doctor, must have exhausted all available therapies, etc. The number of physician assisted suicides have been steadily increasing in Oregon. Since the law was enacted in 1997, reports have shown that 1,327 people received prescriptions and 859 people have died from using the prescribed drugs.
The issue of suicide in general is not the issue with the Death with Dignity movement. Whether or not suicide is immoral or illegal is a rather moot point after one has committed it. Unsuccessful attempts rarely if ever result in criminal charges. The issue is the involvement of the medical profession. Should the mission of medical providers be to help patients die as well as live? Opponents often point to the Hippocratic oath command of “First do no harm,” while proponents ask if the true harm is to condemn patients to terrible suffering.
Five states have Death with Dignity laws, California being the latest. California’s law is modeled after the one in Oregon. On Oct. 5 Governor Jerry Brown signed California’s Death with Dignity bill into law. Less than a week later, on Oct. 11 Governor Jerry Brown vetoed California’s Right to Try bill.