I am with Tim Sandefur:
Here is a proposal that I think everyone, regardless of their political views, should be able to support: the right to try.
This proposal would allow terminally ill patients to try medicine or treatments that have been approved for safety, but not for efficacy, by the FDA. It’s a sad fact that every year, untold numbers of people die and suffer due to the the FDA’s time-consuming, and sometimes politically manipulated, process for approving medical treatments. They should have the right try treatments that might not work–but might save, or at least improve, their lives. It shouldn’t be up to government bureaucrats to make these decisions for us. It’s not smart, it’s not efficient, and it’s not compassionate.
Quite so, and it is strange to see that those who proclaim that health care is a constitutional right aren’t at the forefront of the effort to allow terminally ill patients the right to try medicines that may alleviate their suffering. Indeed, I am ready to state that the right to try is more constitutionally protected (under the Fifth Amendment) than is the right to health care in general. Sadly, as Sandefur notes, the D.C. Circuit Court of Appeals’s decision on the issue is both constitutionally and morally indefensible. I hope–as Sandefur does–that the Goldwater Institute is able to help bring into place state-by-state reforms that codify the right to try into law.
Incidentally, the next time that someone tells you that libertarians aren’t compassionate, point them to this issue, which is one of many that shows that libertarians are on the side of the angels.