The state of Michigan has passed a law that overtly defies some FDA restrictions on drugs for extremely sick patients, effectively nullifying the unconstitutional federal agency in this narrow, but important, area.

Senate Bill 991 (SB991), commonly referred to as Right to Try legislation, was signed into law last last month, making the state the fifth to pass such legislation.  It allows investigational drugs, biological products or devices to be made available to eligible terminally ill patients. The term “investigational” refers to medical treatments that have completed phase one of a clinical trial but have not yet been approved for general use by the Food and Drug Administration and remain under investigation in clinical trials. This means that these FDA rules will be partially nullified in the state.

SB991 was signed into law by Gov. Snyder on Oct. 22. It was originally introduced by Sen. John Pappageorge (R-District 13) and co-sponsored by Sen. Mike Nofs (R-District 19), Sen. Rick Jones (R-District 24), Sen. Jack Brandenburg (R-District 11), Sen. Patrick Colbeck (R-District 7), Sen. Roger Kahn (R-District 32), Sen. David Robertson (R-District 26), and Sen. Jim Marleau (R-District 12). It passed with a 31-2 vote in the Senate before being passed unanimously by the house.

Additional text in the state law makes it clear that “a licensing board or disciplinary subcommittee shall not revoke, fail to renew, suspend, or take any action” against a health care provider for prescribing experimental procedures to qualifying patients.

Michigan now joins Colorado, Missouri, and Louisiana, states that passed similar laws this year. Arizona put a similar ‘Right to Try’ measure up to the voters on a ballot initiative. It passed on Nov. 4 by a 78-22% margin.

These measures that are catching fire in states throughout the country are reminiscent of the early days of the medical marijuana movement. When federal bureaucrats failed to reverse its policies and admit the medicinal effects of cannabis, California took matters into its own hands. Medical marijuana was first authorized for the seriously ill in the Golden State. When the public saw evidence of its effectiveness, its application was expanded from there. Now, 23 states allow for the use of medical marijuana despite federal prohibition.

All of these developments signify that a new trend is developing – legislators and activists utilizing nullification to solve societal problems rather than waiting on Washington D.C. to fix things. This measure may well create a ripple effect leading to more local and state control on not just health care, but also many other important issues as well.

The 10th Amendment

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