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.
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”).
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)
U.S. v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 499 (2001)
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.
Montana Initiative No. 148 2004; Vermont Therapeutic Use of Cannabis 2004
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.
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.