Ganja Law 101 Episode 7

From 2000 to 2005, med­ical neces­si­ty has now been adopt­ed by a total of nine states but the fed­er­al gov­ern­ment and the state of Iowa reject the argu­ment say­ing the statutes clas­si­fy it as hav­ing no med­ical use.
RFRA (1993)
The Reli­gious Free­dom Restora­tion Act (RFRA) was enact­ed to over­rule the deci­sion in Employ­ment Divi­sion v. Smith, 494 U.S. 872 (1990), because Con­gress felt that the Equal Pro­tec­tion require­ment had not exist­ed pri­or to the deci­sion.  See RFRA § 3(a) (“even if the bur­den results from a rule of gen­er­al applic­a­bil­i­ty”).

In Smith, the Supreme Court held that a First Amend­ment claim against a State must fail unless there is an addi­tion­al Equal Pro­tec­tion claim.  The fed­er­al gov­ern­ment allowed the reli­gious use of pey­ote at that time, but Ore­gon did not.  Ore­gon did not allow any excep­tions to its con­trolled sub­stances act, reli­gious or oth­er­wise.

I was not affect­ed by the deci­sion in Smith or by the RFRA because Iowa had an exemp­tion for the reli­gious use of pey­ote (lack­ing gen­er­al applic­a­bil­i­ty).  I had an Equal Pro­tec­tion / Estab­lish­ment Clause claim.  How­ev­er, unlike pey­ote, where Texas was the legal source, there were no states where cannabis was legal­ly avail­able.
AIRFAA (1994)
Con­gress want­ed to over­rule Ore­gon as well.  The Amer­i­can Indi­an Reli­gious Free­dom Act Amend­ments (AIRFAA), cod­i­fied at 42 U.S.C. § 1996a, requires all 50 states to allow the reli­gious use of pey­ote.

But the AIRFAA has no enforce­ment clause and can­not be enforced for the same rea­son the Unit­ed States Supreme Court found the RFRA could not be applied to the states in City of Boerne v. Arch­bish­op Flo­res, 521 U.S. 507 (1997).

Unlike Ore­gon, Texas allowed the reli­gious of pey­ote.  See 42 U.S.C. § 1996a(b)(3), cit­ing Vernon’s Texas Health and Safe­ty Code.  And com­pare this with 21 U.S.C. § 822(d) (“con­sis­tent with pub­lic health and safe­ty”).
Col­orado Amend­ment 20 (2000); Hawaii Med­ical use of Mar­i­jua­na Act (2000); Neva­da Bal­lot Ques­tion 9 (2000)
As explained above, in the Con­trolled Sub­stances Act, the bal­ance already has been struck against a med­ical neces­si­ty excep­tion.  Because the statu­to­ry pro­hi­bi­tions cov­er even those who have what could be termed a med­ical neces­si­ty, the Act pre­cludes con­sid­er­a­tion of this evi­dence.
Conant v. Wal­ters, 309 F.3d 629, 635 (9th Cir. 2002)
If, in mak­ing the rec­om­men­da­tion, the physi­cian intends for the patient to use it as the means for obtain­ing mar­i­jua­na, as a pre­scrip­tion is used as a means for a patient to obtain a con­trolled sub­stance, then a physi­cian would be guilty of aid­ing and abet­ting the vio­la­tion of fed­er­al law.
State v. Bon­jour, 694 N.W.2d 511, 513, 514 (Iowa 2005)
Despite the legislature’s con­clu­sion that mar­i­jua­na has no allow­able med­i­c­i­nal use, it left the door open for pos­si­ble med­ical uses in the future.  Under sec­tion 124.204(4)(m), mar­i­jua­na is a Sched­ule I con­trolled sub­stance “except as oth­er­wise pro­vid­ed by rules of the board of phar­ma­cy exam­in­ers for med­i­c­i­nal pur­pos­es.”
That pro­ce­dure is to defer to the Board of Phar­ma­cy Exam­in­ers, which is far bet­ter equipped than this court — and the leg­is­la­ture, for that mat­ter — to make crit­i­cal deci­sions regard­ing the med­ical effec­tive­ness of mar­i­jua­na use and the con­di­tions, if any, it may be used to treat.  The board has not done so, and we, by leg­isla­tive direc­tive, must wait until it does.
Gon­za­les v. Raich, 545 U.S. 1, 6, 31, 32, 33 (2005)
Foot­note 6:  “Sec­tion 11357, relat­ing to the pos­ses­sion of mar­i­jua­na, and Sec­tion 11358, relat­ing to the cul­ti­va­tion of mar­i­jua­na, shall not apply to a patient, or to a patient’s pri­ma­ry care­giv­er, who pos­sess­es or cul­ti­vates mar­i­jua­na for the per­son­al med­ical pur­pos­es of the patient upon the writ­ten or oral rec­om­men­da­tion or approval of a physi­cian.“  § 11362.5(d) (West Supp. 2005).
… broad enough to allow even the most scrupu­lous doc­tor to con­clude that some recre­ation­al uses would be ther­a­peu­tic
Foot­note 42:  For exam­ple, respon­dent Raich attests that she uses 2.5 ounces of cannabis a week.  App. 82.  Yet as a res­i­dent of Oak­land, she is enti­tled to pos­sess up to 3 pounds of processed mar­i­jua­na at any giv­en time, near­ly 20 times more than she uses on a week­ly basis.
We do note, how­ev­er, the pres­ence of anoth­er avenue of relief.  As the Solic­i­tor Gen­er­al con­firmed dur­ing oral argu­ment, the statute autho­rizes pro­ce­dures for the reclas­si­fi­ca­tion of Sched­ule I drugs.