Medical cannabis patients as young as 14 are urging the Supreme Court to take up a case challenging the constitutionality of classifying marijuana as a Schedule 1 drug.
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.”
While the Supreme Court is expected to decide whether it will hear Hiller and Bondy’s case during its Oct. 9 conference, Hiller said he felt the justices would be deeply concerned with the circuit split between the two appeals courts.
The larger issue, he said, is that there is no real legislative push for decriminalizing medicinal marijuana nationally, noting that seven congressional lawmakers wrote in a supporting amici brief that “legislative action is made practically impossible by complicated political realities.”
“From a constitutional framework perspective, it’s not for Congress to determine whether or not it has overstepped its bounds. That responsibility under our Constitution, since Marbury v. Madison, has been assigned to the courts,” Hiller said, referring to the landmark 1803 Supreme Court decision establishing the principle of judicial review. “It is our courts’ responsibility to protect our civil rights. It is the courts’ responsibility to ensure that Congress doesn’t overstep its legislative authority.”
Proponents of decriminalization also argue that cannabis no longer meets three specific requirements outlined by the DEA to be classified as a Schedule 1 narcotic — including that a substance has no medical application or use.
The federal government has allowed medical marijuana research since the 1970s, first contracting with the University of Mississippi to grow acres of the plant. Additionally, a cannabis drug called Epidiolex, used to treat rare forms of epilepsy like Bortell’s, has already been approved by the FDA for use on patients 2 years and older.
“How can cannabis meet requirements two and three – meaning that it has no medical application in the United States and it’s so dangerous it can’t be used in treatment even under medical supervision – when the United States government has authorized the distribution of a cannabis medication to children, even if they never see a doctor,” Hiller said. “I am telling you, that if we get in front of the United States Supreme Court, I don’t care quite frankly who the justices are.”
Bondy reflected on the arc of the pair’s work to secure relief for medicinal cannabis patients, noting that not only have the laws surrounding marijuana changed, but so has its public perception.
“When I was in my early 20s, it was the end of Ronald Regan’s presidency, you know, and we were deeply in the throes of the war on drugs. Cannabis wasn’t looked at the same way it is today; there were no state-legal medical programs, there were no recreational programs, and people had a vastly different, far darker view towards marijuana in general,” Bondy said.
He added, “There was much more of a general stigma. And I think today, in contrast, we have a powerful experiential anchor, where a lot of young people — indeed most — have tried weed and enjoyed it. Americans personally understand marijuana better than ever, and so lot of the things that proponents of the legalization movement have been saying for many, many years, are now ringing with greater clarity.”
If cannabis were to be reclassified as a Schedule 2 narcotic rather than decriminalized altogether, Hiller said, cannabis companies would be out of business. A multimillion-dollar industry would need to be reexamined through the FDA, completing drug trials and other tests.
As a Schedule 1 drug, marijuana can currently be distributed in accordance with state programs due to a 2014 congressional directive to the Justice Department to ignore enforcing the Controlled Substances Act in state jurisdictions, Hiller said.
“I mean if you go from one to two, big business takes over, pharmaceutical companies take over, mom and pop people are shit out of luck,” Bondy said, noting a Schedule 2 designation would require pharmacists to prescribe cannabis, thereby limiting access.
Some medical cannabis advocates see the House’s addition of a marijuana banking provision in the latest version of its Covid-19 relief bill, the Heroes Act, as a legislative victory. The bill, if it is ever passed by the Senate and signed into law by the president, would create legal paths for recreational and medicinal cannabis businesses to work with banks and other financial services.
But Hiller thinks the bill is the opposite of a victory, saying it reminds him of “everything that’s wrong with our legislative process.”
“There’s a huge problem with medical marijuana patients, so what do we want to do? We want to make sure the bankers have enough means by which to make money off the cannabis industry,” Hiller said. “I think the real problem is that medical patients who need medical cannabis and who in my view… have a fundamental, constitutional right to treat with medication that keeps them alive, should be considered the primary recipients of legislative attention, not the banks.”