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Ballot measure aims to connect terminally ill to drugs in development

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PHOENIX – To Kurt Altman, terminally ill patients too often get caught up in the red tape of federal drug approval at the expense of receiving medicines that could help them.

“We believe a person has a right to self-preservation and make their own choices on the means of that preservation,” said Altman, senior litigation counsel for the Goldwater Institute, an independent group that advocates for limited government.

The Goldwater Institute is the main supporter of Proposition 303, billed as the “Right to Try.” If approved by Arizona voters, the measure would grant terminally ill people access to experimental drugs that have passed the first phase of FDA approval with a goal of prolonging or improving their lives.

The Legislature referred the measure to the ballot based on a resolution authored by Rep. Phil Lovas, R-Peoria.

“It’s for people who are out of options,” Lovas said in a phone interview. “We think this will give them an opportunity to try something that has shown promise.”

“If you are terminally ill, you don’t have time to wait around for approval,” he added.

But Rep. Eric Meyer, R-Paradise Valley, a former emergency room doctor, said supporters are more concerned with Washington’s control over patients’ options.

“They are sticking the finger in the eye of the federal government,” he said.

Meyer, who voted against the resolution on the House floor, said the change would put patients at risk because the first phase of FDA approval, in which a drug is tested on healthy individuals, is far easier than the second phase, which tests for toxicity and efficacy. It’s not until a drug reaches the third phase that it’s tested on those with the disease in question.

“Personally, I have dealt with patients who have died from the treatment, not the disease,” he said.

But Altman said terminally ill people who have exhausted conventional treatments don’t have much to lose.

“If you take this drug you might die, but the only people who are eligible for those drugs are going to die anyway,” he said. “How can a bureaucracy take that chance away from an individual?”

Altman said something is wrong when it takes, on average, 10-25 years and $1 billion for a drug to go through the FDA’s aproval system.

“It’s important to get these medications to people, hopefully it will lead to some reform,” he said.

The Goldwater Institute has been the primary donor to Your Right to Try, the main group supporting Proposition 303, contributing virtually all of the $71,000 raised by the group through Sept. 15.

A group called Right 2 Try in Support of Prop. 303 also registered with the Arizona Secretary of State’s Office. Through Sept. 15, it had raised $2,525.

There is no organized opposition to Proposition 303.

Paul Bender, professor of constitutional law at Arizona State University’s Sandra Day O’Connor College of Law, said if the proposition were to pass he doesn’t know how it would be enforced, as federal law always trumps state law.

He also said there may be consequences for doctors who follow the measure’s provisions.

“If they prescribe drugs they are not supposed to, they lose their right to prescribe drugs,” Bender said. “Maybe there is an exception to things like that.”

State Rep. Sonny Borrelli, R-Lake Havasu City, said the right to try is implicit in the U.S. Constitution.

“Life, liberty and pursuit of happiness, I think you have the right to try and save your life,” he said.

Lovas said the proposition is receiving a lot of support because it’s common sense.

“It fills a need that is out there,” he said. “Everyone would want the option for a loved one if they were dying.”