Alaskan Legislature Fights FDA, Passes Important 'Right to Try' for Terminally Ill

P. Gardner Goldsmith | April 30, 2018



Once in a while, politicians do something shocking: they eliminate or push back against onerous and oppressive laws, and, on April 25th, the legislature of Alaska did just that.

As the Tenth Amendment Center reports, the Alaskan House and Senate both unanimously approved (40-0 in the House, and 20-0 in the Senate) HB 43, which allows terminally ill Alaskans to skirt the FDA requirement that they get federal “okays” before trying experimental medicines the FDA has not approved.

HB43 creates a process to bypass the FDA expanded access program and allows patients to obtain experimental drugs from manufacturers without first obtaining FDA approval. This procedure directly conflicts with the federal expanded access program and sets the stage to nullify it in practice.

In addition, the Alaskan law provides protection for doctors and manufacturers who offer or make the experimental drugs:

The proposed law includes protections for healthcare providers, shielding them from legal liability “in an action for damages for the injury or death of a patient with a terminal illness resulting from the patient’s use of an investigational drug, biological product, or device for the purpose of sustaining the patient’s life if the person, acting in good faith and with reasonable care.” The legislation provides similar protections for manufacturers of an experimental treatment.

This is not only wonderful for sick people and those who care about them, it unequivocally does something else, something important for the intellect and for all people living in the US.

It reminds us of the supposed “rules” for the wondrous federal government. It reminds us that the FDA is unconstitutional, and that, according to the Constitutional strictures those hyenas in DC promise to uphold, states retain the prerogative to nullify unconstitutional federal laws…

The historical importance of moves like this cannot be overemphasized. And the subject matter – terminal illness and the right to try experimental drugs if one is going to die anyway, for goodness sake – should not narrow one’s view to solely that issue. The reserved power to nullify unconstitutional federal laws is clearly laid out in the Ninth and Tenth Amendments, which state:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

What’s so hard to understand?

The Founders understood that only the powers delegated to the feds were theirs. Heck, even Alexander Hamilton pretended to believe that when he wrote the Federalist papers, and before he embarked on his disastrous and untrue campaign that the Constitution had “implied powers” in it.

If the Constitution has all those “implied powers”, why bother to write enumerated powers? Why bother to allow for an Amendment process to add powers?

Such perfidious approaches to “rules” would never stand in the private market, but in the corrupt and perversely incentivized world of politics, Hamilton’s ignoble scions get away with it generation after generation, creating monstrosities like the FDA.

As Dr. Mary Ruwart in her new book, “Death by Regulation” and as others have pointed out, since acquiring the unconstitutional power in 1962 to “regulate” whether companies can market drugs and medical devices, the FDA is responsible for tens of thousands of needless deaths. It has blocked devices or medicines that could have helped people; it has increased the costs of drugs and increased the time needed for drug makers to release the drugs – thereby, again, causing the deaths of those who might have been saved by getting the medicine earlier.

The FDA is taking productive capital, squandering human life and human ingenuity, and crushing liberty and individual choice. Its effects are real, and its existence is poison.

Fighting back is not only ethically justified, it is constitutionally imperative.

Thomas Jefferson wrote about nullification of unconstitutional federal laws during the Alien and Sedition Acts crisis of 1798. He was wholeheartedly supportive of the practice. In fact, in his Kentucky Resolutions he wrote, among other important statements, this, which serves as a reminder about the importance of what Alaskan legislators just did:

Resolved, that alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people,” the act of the Congress of the United States passed on the 22d day of June, 1798, entitled “An act concerning aliens,” which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

Important words.

The Alaska bill pushing back against the FDA awaits the Governor’s signature. If he does not sign it, it will become law regardless.