WASHINGTON (CN) — When Alexis Bortell was 7 years old, doctors diagnosed her with intractable epilepsy, a form of the seizure-inducing disease resistant to mitigating remedies and treatments. For two years, Bortell’s parents exhausted her therapeutic options until they were given a choice: a partial lobotomy leaving their daughter disabled or treatment with medicinal cannabis.
Cannabis provided Bortell a relief pills and injections had not. Five years after her first treatment, she has yet to suffer from another seizure, excels academically and even penned her own book, “Let’s Talk About Medical Cannabis: One of the Earliest Medical Communities Seen Through the Eyes of its Youngest Advocate.”
Since marijuana is a Schedule 1 narcotic under the Controlled Substances Act, Bortell can’t set foot on federal property with her medication. That includes the military base where both Bortell’s parents work, the U.S. Capitol and the National Mall. Now old enough to begin high school, the 14-year-old Texas girl’s medicine also complicates attending normal education programs.
Michael Hiller – one of two attorneys petitioning the Supreme Court on behalf of Bortell and two other patients to challenge the constitutionality of classifying marijuana as a Schedule 1 drug – told Courthouse News that Bortell’s story is America’s story.
With millions of cannabis patients across the country deprived of basic liberties because of their medication, according to the petition, medicinal prohibition in 17 states infringes on those users’ Fifth Amendment right to “treat with a safe, effective and available medication that preserves their health and lives.”
The Justice Department, which declined to comment for this story because of the ongoing litigation, has not filed a response brief with the Supreme Court.
Hiller and Joseph Bondy, another attorney representing Bortell and the two other medicinal cannabis patients, wrote in their petition that a Second Circuit ruling splitting with the D.C. Circuit should be reviewed by the high court.
The Manhattan-based appeals court held in May 2019 that the Drug Enforcement Administration has the power to reschedule cannabis. While the three-judge panel found the plaintiffs had not exhausted their administrative remedies, it made the rare move to retain jurisdiction because of potential delays in the administrative process.
“We agree with the district court that exhaustion was appropriate here. But in light of the allegedly precarious situation of several of the plaintiffs, which at this stage of the proceedings we must accept as true, and their argument that the administrative process may not move quickly enough to afford them adequate relief, we retain jurisdiction of the case in this panel, for the sole purpose of taking whatever action might become appropriate should the DEA not act with adequate dispatch,” the ruling states, noting the agency takes an average of nine years to decide petitions seeking to reclassify drugs.
However, in a 2013 ruling, the D.C. Circuit found the DEA’s procedural decision to not reclassify cannabis was not arbitrary and capricious. The court said at the time that it found “no currently accepted medical use for marijuana in the United States.”
Also controlling marijuana prohibition in the U.S., Hiller said, is the United Nations' 1961 Single Convention on Narcotic Drugs — an international treaty which also defines cannabis as a Schedule 1 narcotic.
Other signatories to that treaty like Canada and South Africa have amended their commitments to the document through their supreme courts. Canada’s high court, for example, ruled in 2015 that all forms of medical marijuana are permissible therapies and the prohibition of the drug “was arbitrary and contradicted its purpose of protecting the health and safety of Canadians.”
“We have made the point that the classification of cannabis is not just a poorly conceived and ill-designed law,” Hiller said in an interview. “We have argued that it is fundamentally irrational, arbitrary and capricious, which would render it a violation of the due process clause of the Fifth Amendment.”