Nullification can take many forms. It can also vary in its range and scope. Nullification can pertain to any federal laws on certain matters which it lacks authority, or it can affect very specific, but vital aspects of a federal law.
During this most recent November election, Arizona residents approved Prop. 303, known as the Arizona Terminal Patients’ Right to Try Referendum. The proposition allows investigational drugs, biological products or devices to be made available to eligible terminally ill patients, which are not permitted under the FDA. Prop. 303 is similar to laws passed in Colorado, Michigan, Missouri, and Louisiana, known as “Right to Try” laws.
These laws, though they deal with a small aspect of the FDA’s regulations, provides us with a clear model of how to nullify federal laws that violate the Constitution by narrowing the influence of nullification to limited aspects of the law itself.
Under Prop. 303, doctors are also shielded from being reprimanded for prescribing experimental procedures to qualifying patients. The law also makes it a Class 1 Misdemeanor for state officials who refuse to comply with this law.
Under the unconstitutional authority of the FDA, terminally ill patients must use only approved drugs to ease their suffering or, more significantly, possibly keep them alive. This prohibition is a gross and blatant violation of the right to consume whatever substance one wishes, but it is all the more detestable that this right be denied to people looking the Grim Reaper in the eye.
The effectiveness of such nullification laws rests in the obvious logic behind them; dying people should not be deprived of their right to any means that might ease their pain or keep them alive, and it is extremely difficult for opponents to argue that dying people should be forced to use only drugs approved of by bureaucrats who are incapable of empathizing with their possible suffering.
In Louisiana, for example, the law received 80 percent approval, according to one survey. In three of the states that have passed “Right to Try” laws, not a single politician voted nay. In Michigan, the entire state House voted yea with no abstentions, while only two senators voted against it.
Some may argue that the FDA already has a process for this. Arthur Caplan, director of the bioethics division at New York University Langone Medical Center, claims that the FDA approves all requests it receives for “compassionate use” exemptions.
The numbers don’t seem to add up. Less than 1,200 patients qualified under the “compassionate use” rules in 2011, according to WMD. The number dropped to 940 in 2012.
At the same time, there were 1,529,560 new cancer cases in 2010 alone, according to the Goldwater Institute.
Meanwhile, it can take more than a decade and a billion dollars to get new medications on the market, according to Lucy Caldwell, communications director for the Goldwater Institute.
One such example is that of Mikaela Knapp, who was diagnosed with kidney cancer.
According to WND:
She and her husband, Keith, launched a social media campaign to lobby drug firms and the FDA to give her access to a new gene therapy. Their efforts gained national attention and generated 200,000 signatures on a petition at Change.org but failed to win access to the treatment. The 25-year-old newlywed died April 24.
Under a free market (and if the feds adhered to the Constitution) the therapy would have been available for Knapp already. She would not have had to seek anyone’s permission, which she died waiting for.
This is simply unacceptable. Whatever the dangers inherent in trying experiment drugs, this is a decision that should rest solely with the person consuming the drug, not busybodies, do-gooders, or sanctimonious control freaks.
There may be those who reject the nullification method and opt instead to work within the system in D.C., but they shouldn’t get their hopes up. In 2003, a federal judge ruled that terminally ill people do not have a right to access to investigational medicine. Not surprisingly, the U.S. Supreme Court declined to consider an appeal on that ruling.
Americans are tired of waiting for change to happen in the D.C. Swamp, so they’re taking it to their state legislatures, where they still have some say on what the politicians do with their money. Nullifying this illegal authority of the FDA paves the way for future nullification of other laws that infringe on our rights.