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Protecting the Right to Try


Case Status

Date Filed

May 24, 2021

Last Step

Filed amicus brief in the Ninth Circuit.

Next Step

Await decision.

Case Overview

Passed by 41 states before a federal version was signed into law in 2018, Right to Try gives dying patients the right to use investigational medicines that have been approved for safety, but not yet approved for final sale, by the federal government. The basic principle of Right to Try is that individuals have the right to make their own decisions about their healthcare—especially when their lives hang in the balance, without having to first get permission from the U.S. Food and Drug Administration (FDA)—permission that often takes a long time to get, and which the FDA often refuses for arbitrary reasons. In the years since they were adopted, Right to Try laws have improved and saved the lives of hundreds of terminally ill patients who otherwise would have been out of options.

But when oncologists at the Advanced Integrative Medical Science (AIMS) Institute wanted to treat cancer patients with the investigational drug psilocybin, another government agency got in the way. Psilocybin meets the criteria for Right to Try and has been shown to be safe and effective in clinical trials for relieving anxiety and depression in patients with advanced cancer. But psilocybin is a Schedule I substance, meaning its access is also restricted by the federal Drug Enforcement Agency (DEA), which rejected AIMS doctors’ access to the drug for therapeutic treatment. A few weeks ago, the AIMS Institute, oncologists, and cancer patients filed a Petition for Review in the U.S. Court of Appeals for the Ninth Circuit to stop the DEA from interfering with Right to Try.

Joined by our friends at the Cato Institute, we filed a brief in support of these desperate patients, arguing that the DEA’s refusal to accommodate Right to Try undermines the important goal of getting dying patients the treatments they need when they need them—and allowing patients and their doctors to make these important decisions free from needless bureaucracy.

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