As 2026 approaches, now is the time to reflect on the victories from the year and the lessons to be taken moving forward. Right to try legislation is at the front of the list when it comes to free market health care solutions.
While federal right to try legislation was signed into law on May 30, 2018, there is still substantial room for right to try’s core principles to evolve in step with scientific and technological advancements.
To understand the policy, it is paramount to understand the history and intent associated with right to try legislation. Right to try allows any patient to engage in additional medical treatments that may yield different results from what they have already attempted and what is currently approved by the United States Food and Drug Administration (FDA).
Right to try is a compassionate policy allowing terminally ill and untreatable patients the ability to seek medicines and treatments that are deemed safe but have not yet gained final approval from the FDA. People who have perhaps months to live cannot wait years for the FDA to complete drug trials in many instances.
The FDA’s mission is to protect the public by testing drugs to make sure they are safe and effective. The FDA develops and approves more drugs than any other country in the world. However, when already approved treatments do not work for suffering patients, the FDA is simply too slow to respond. Patients who do not qualify for a clinical trial or cannot otherwise gain access to novel treatments are left without hope. That is where right to try policies come into play.
The federal right to try legislation was a significant win for health care policy and patients across the nation. However, it is very limited in scope. Few lawmakers across the country have recognized the discrepancy between current right to try laws and scientific advancements, namely with individualized investigational treatments.
The best example of a state tackling this issue in the 2025 legislative sessions is Texas. Texas Senate Bill 984 was signed by Gov. Greg Abbott (R) and will change the lives of numerous Texans with life-threatening and/or debilitating illnesses. SB 984 picks up right where the federal right to try legislation left off. It recognizes that advances in research offering individualized investigational treatments to patients don’t work in the current FDA approval process, which was designed for one-size-fits-all drug approval.
Similarly, this year, New Hampshire passed HB 701, legislation that expands the state’s Right to Try Act to include access to investigational individualized treatments.
The FDA by nature amasses very large cohorts and looks for cures and treatments that are safe for everyone. However, as research continues to accelerate, new treatments and potential cures are being found for smaller cohorts. Doctors and scientists can design a cancer drug or vaccine targeted toward a particular individual’s affected cells or genetic mutations and stimulate the patient’s own body to fight cancerous tumors. Because that treatment is designed specifically for that patient, it cannot go through the FDA’s existing clinical trial system, which is designed to test treatments that work for hundreds or thousands of patients.
Individualized investigational treatments are at the cutting edge of health care innovation. They are drugs, biological products, devices, or targeted therapies unique to the patient based on the patient’s biological characteristics, such as their genetic profile.
Individualized investigational treatments show great promise. The Mayo Clinic’s “All of Us” research initiative aims at building a bank of one million deidentified genetic profiles. This will allow researchers to design patient-specific therapies to cure and treat common and rare diseases alike. For instance, researchers at Mayo diagnosed 13-year-old Araeya Sell with a rare genetic disorder that had gone undiagnosed for seven years. Through individualized investigational treatments, the Mayo Clinic designed a clinical trial therapy just for her. Fortunately, Araeya responded very well to their targeted therapies.
It is far-fetched and idealistic to assume the FDA can and will respond as quickly as technological innovation demands. The FDA process was designed to be slow and deliberate to protect the greatest number of people by preventing them from being subjected to unproven drugs. However, that approval process was designed at a time when the human genome was not yet mapped and the idea of individualized DNA mapping was science fiction. Legislation that provides a bridge between current right to try standards and individualized investigational treatments provides the flexibility to offer suffering patients hope through realistic options when all else may seem to be lost.
As research and technology progresses, more patients will benefit from individualized treatment programs. Thankfully, states have taken up the gauntlet to spearhead this issue during the 2025 legislative sessions. Hopefully, many other states can follow suit in the coming years to provide the same compassion and options to those patients who may be suffering in their states.
The following resources provide additional information on right to try and FDA reform:
New Developments in Right to Try Legislation – American Health Law Association
https://mrctcenter.org/wp-content/uploads/2025/01/Weekly_012425.pdf
The American Health Law Association explores “Right to Try 2.0,” focusing on individualized investigational treatments along with right to try and expanded access programs.
Right to Try: Questions and Answers
https://righttotry.org/about-right-to-try
The Goldwater Institute explains their pioneering work to expand patient choice for Americans.
Testimony Before the South Dakota House Health and Human Services Committee on Right to Try
Matt Dean testifies on behalf of one of the first bills introduced to expand the ability of nonterminal patients to access investigatory drugs.
The Right to Try Medicine
Daniel Sutter of The Heartland Institute explains the need for right to try federal legislation and the benefits it offers.
Sen. Johnson Introduces Legislation to Reaffirm Doctor’s Right to Treat Patients without Interference from Federal Health Agencies
Sen. Ron Johnson (R-WI) introduced legislation to protect doctors, patients, and prescribers that would “reaffirm that no federal agency has the authority to regulate the practice of medicine and that no federal law, rule, or regulation of policy will prohibit or restrict the lawful prescribing or disbursing of any FDA approved drug or Right to Try drug.”
Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.
The Heartland Institute can send an expert to your state to testify or brief your caucus, host an event in your state, or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartland’s government relations team at [email protected] or 312/377-4000.
Samantha Fillmore is a State Government Relations Manager for The Heartland Institute.
