| CARL OLSEN, Appellant, v. IOWA DEPARTMENT OF PUBLIC HEALTH, Respondent. |
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DIA Docket No. 22IDPH0002 RESPONDENT’S POST-HEARING BRIEF |
I. SUMMARY OF THE CASE
The Iowa Department of Public Health (“Department”) administers the Medical Cannabidiol Act (“Act”) contained at Iowa Code chapter 124E, which authorizes patients who suffer from debilitating medical conditions to possess and use medical cannabidiol upon receipt of a medical cannabidiol registration card (“registration card”). The Act requires — as a condition of obtaining a registration card — that an applicant obtain a written certification from a health care practitioner that the applicant suffers from a debilitating medical condition which qualifies for the use of medical cannabidiol. Iowa Code §§ 124E.3, 124E.4.
On November 24, 2021, Appellant Carl Olsen submitted an online application for a registration card to the Department. Department’s Exhibit 2. Appellant’s application did not contain the required health care practitioner certification form. Department’s Exhibits 2 and 5, Testimony of Owen Parker. Appellant admits he does not have a debilitating medical condition as defined by the Act, and that he does not meet the requisite statutory qualifications to use medical cannabidiol for the legally authorized purposes. Department’s
Exhibit 5.
In lieu of submitting the health care practitioner certification form, Appellant submitted a personal “Declaration” describing his religious use of cannabis as a member of the Ethiopian Zion Coptic Church. Department’s Exhibit 2, Testimony of Owen Parker. Owen Parker, Chief of the Bureau of Medical Cannabidiol within the Department, reviewed Appellant’s application. Testimony of Owen Parker. Mr. Parker could not approve the application because it lacked the required health care practitioner certification form. Testimony of Owen Parker. Mr. Parker consulted with his supervisor, Sarah Reisetter, Deputy Director of the Department, who confirmed that he did not have any authority to approve the application. Testimony of Owen Parker. Mr. Parker denied Appellant’s application and sent written notification regarding the denial to Appellant on January 7, 2022. Department’s Exhibit 3, Testimony of Owen Parker. The denial letter provided information regarding Appellant’s right to appeal the denial. Department’s Exhibit 3. On January 20, 2022, Mr. Olsen filed a timely appeal. Department’s Exhibit 4.
II. APPLICABLE LAW
The Medical Cannabidiol Act, Iowa Code chapter 124E, provides the authority for the Department to issue registration cards to eligible patients and primary caregivers. The Act provides a list of the requirements that must be satisfied before the Department may issue a registration card to a patient, which includes that the applicant must submit a written certification to the Department signed by the patient’s health care practitioner that the patient is suffering from a debilitating medical condition. Iowa Code §§ 124E.4(1)(c), 124E.3; 641 IAC 154.3(1)“c”. The Medical Cannabidiol Act solely authorizes the possession and use of medical cannabidiol for medical purposes: the Act does not
reference any religion or religious use of medical cannabidiol and does not provide a mechanism for individuals to apply for a registration card for religious use.
III. ARGUMENT
Based on the undisputed facts, Appellant’s application for a registration card was properly denied because he (admittedly) failed to submit a written health care practitioner certification form. Appellant further admits that he does not have a “debilitating medical condition” as defined in Iowa Code section 124E.2(2) and 641 IAC 154.1. Under Iowa law, access to medical cannabidiol is restricted to individuals that have debilitating medical conditions. Based on the clear language of chapter 124E, and accompanying administrative rules, the Department was required to deny Appellant’s application for a registration card because Appellant failed to meet the minimum requirements for issuance.
Appellant’s brief cites to other contexts in which the Department provides for religious exemptions or waivers as support for his argument that the Department should recognize a religious exemption in this matter. This argument fails for three reasons. First, the examples cited by Appellant involve circumstances in which the Department recognizes a religious exemption to a generally applicable state requirement. In certain circumstances in which the legislature has imposed a mandated activity to protect public health — such as childhood screenings or immunizations — it has chosen to provide exemptions to the required activity if it conflicts with an individual’s sincere religious beliefs. In contrast to the other examples provided by Appellant, Iowa’s Medical Cannabidiol Act does not impose a requirement or obligation on all Iowans that would potentially educe a similar exemption
process.[1]
Second, in each of the examples cited by Appellant — including dental and vision screening of children, blood lead testing of children, immunization of children, the placement of prophylactic solutions in the eyes of newborns, and specific courses of medical treatment — the ability for the Department to authorize a religious exemption or waiver was expressly established by the legislature. In enacting the Medical Cannabidiol Act, the legislature did not include any provision that would authorize the Department to waive or exempt any of the statutory requirements to allow for the religious use of medical cannabidiol.
Chapter 124 is not inclusive because it has a religious exemption and no process for obtaining another. The agency would not be expected to create a religious exemption without statutory authorization. The examples just show that religious exemptions exist in department regulations, and the agency knows how to evaluate a religious exemption application. The petition for a declaratory judgment that preceeded the administrative appeal was based on lack of agency authority to rule on a constitutional challenge to a statute.
In Emplyment Division v. Smith, 494 U.S. 872 (1990), the court said the state could deny a bona fide religious claim if the law (a state controlled substances act - a criminal statute) was generally applicable, which it was in Oregon. At that same time, Iowa law was not generally applicable because it had a religious exemption for peyote. The Iowa court said my use of marijuana was not equal to the use of peyote. I can never make that claim again (because of the doctrine of issue preclusion: res judicata and collateral estoppel).
However, Iowa law now contains a very unusual exception for marijuana. That’s a different claim. Why would courts evaluate my claim using strict scutiny in the 1970’s and 1980’s, but refuse to consider a different claim based on a dramatic change in the law in 2017?
The cases cited by the department say there is no religious claim for waiving vaccine mandates unless the legislature creates one, and that those laws are otherwise neutral toward religion and generally applicable. But the legislature has created religious exemptions and there is a religious exemption for peyote. The question of whether there are religious exemptions, or whether there are religious exemptions for controlled substances has already been settled long ago, so the only question now is whether a secular exception for medical necessity unfairly omits equal access for a centuries old religious practice.
Finally, while the Department does have a general process for requesting waivers, the Department cannot waive a provision of law that is specifically mandated by statute. Iowa Code § 17A.9A(2)(c); 641 IAC 178. Because the requirement for a written health care practitioner certification form is mandated by the Act, the Department would lack
[1]It is important to note that while the Iowa legislature has chosen to provide for religious exemptions to certain required screenings and immunizations, it is not constitutionally obligated to do so. For example, the states of California, Connecticut, Maine, Mississippi, New York, and West Virginia do not allow religious exemptions to childhood vaccinations and authorize exemptions only on medical grounds. Courts have consistently held that states are not required to include religious exemptions to generally applicable state requirements. See, e.g., Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (holding state “could constitutionally require that all children be vaccinated in order to attend public school.”); Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 353–54 (4th Cir. 2011) (finding state statute requiring school vaccinations does not unconstitutionally infringe the right to free exercise and that “this conclusion is buttressed by the opinions of numerous federal and state courts that have reached similar conclusions in comparable cases.”); Whitlow v. California, 203 F. Supp. 3d 1079, 1084 (S.D. Cal. 2016) (holding “the Constitution does not require the provision of a religious exemption to vaccination requirements.”); McCarthy v. Boozman, 212 F.Supp.2d 945, 948 (W.D. Ark. 2002) (finding it is “well settled that a state is not required to provide a religious exemption from its immunization program. The constitutional right to freely practice one’s religion does not provide an exemption for parents seeking to avoid compulsory immunization for their school-aged children.”)
The examples the department gives from other states miss the mark for a couple of reasons. The examples the department gives from other states do not have any religious exemptions, so the question of whether those religious exemptions were constitutionally required is not relevant. The Iowa Controlled Substances Act also has a religious exemption.
Emplyment Division v. Smith, 494 U.S. 872 (1990), makes it clear that religious exemptions are not required, unless the controlled substances act already has exceptions. Iowa has a religious exemption for peyote, which Oregon did not have. Iowa has a secular exemption for marijuana, which Oregon did not have. So, the analysis is not as simple as the deparment makes it out to be.
Iowa does not limit religious exemptions for vaccine mandates to members of the Native American Church. It’s not a question of whether religious exemptions are required. It’s a question of whether the state can limit religious exemptions to specific religions or specific controlled substances, to the exclusion of all others. Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989) (“A statutory exemption authorized for one church alone, and for which no other church may qualify, presents a ‘denominational preference’ not easily reconciled with the establishment clause”).
Olsen v. DEA, and Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008), make it clear that some religious exemptions are harder to accommodate than others. Peyote and marijuana are not the same, so strict scrutiny was applied and a significant difference was found that justified denying the claim. There was a higher demand for marijuana than there was for peyote. There were fewer controls on the religious use of marijuana than there were for religious use of peyote. There was a state and federal legal source for peyote in Texas. There was no state or federal legal source for marijuana anywhere in the United States.
But that is not the case here, where the religious exemption being requested is identical to the current secular exemption. The department’s examples don’t address any situation where religious exemptions already exist and not all requests for religious exemptions are being treated equally.
Chapter 124E is simply an amendment to chapter 124, so it cannot be evaluated without evaluating the chapter it creates an exception from. The department is essentially saying there is a simple solution: (1) change your religious affiliation to the Native American Church; and (2) change your sacrament to peyote. No questions asked. Authorized and approved, just like that.
Religious exemptions are not constitutionally required, but they are constitutionally permissible. Although religious exemptions are not required, the state cannot discriminate without good cause if the state chooses to create them. Good cause was shown in my previous cases, but not in this one.
authority to approve a request for waiver if Appellant submitted such a request.
Appellant argues the presiding officer should rule on his constitutional challenge to Iowa Code chapter 124E. The Department disagrees. While it is necessary for Appellant to raise his constitutional challenge at the agency level in order to preserve it for judicial review, the agency lacks authority to rule on Appellant’s constitutional challenge to the statute. Endress v. Iowa Dep’t of Human Servs., 944 N.W.2d 71, 83 (Iowa 2020) (stating “It is true DHS’s final decision preserved Endress’s constitutional arguments for judicial review. This is because DHS lacked authority to decide her constitutional issues. Moreover, Endress is required to raise constitutional issues at the agency level, even though the agency lacks the authority to decide the issues, in order to preserve the constitutional issues for judicial review.”). Under the separation of powers doctrine, the judiciary is the branch of government responsible for determining the constitutionality of legislation. ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 605 (Iowa 2004) (stating “We will not give any deference to the view of the agency with respect to the constitutionality of a statute or administrative rule, because it is exclusively up to the judiciary to determine the constitutionality of legislation and rules enacted by the other branches of the government.”). Therefore, a decision in this appeal need only note Appellant’s constitutional argument, but need not rule on the constitutionality of Iowa’s Medical Cannabidiol Act.
Appellant’s brief references the recent district court ruling in Olsen v. Iowa Department of Public Health, which dismissed the case due to Appellant’s failure to exhaust administrative remedies. CVCV062566 (Polk Co. District Court, May 3, 2022).
The ruling does not state that the agency can or should rule on his constitutional challenge. Rather, it states “Mr. Olsen’s constitution claims could be fully adjudicated and the declaratory relief he seeks obtained through a judicial review proceeding under chapter 17A.” Id. at 6–7. It then directs him to “seek relief through Chapter 17A proceedings, after his administrative remedies have been exhausted.” Id. at 7. The requirement for Appellant to complete the administrative process prior to seeking judicial review does not equate to a requirement for the agency to rule on his constitutional challenge.
The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868, 1876 (2021). The Free Exercise Clause, however, “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S.252, 263 (1982) (Stevens, J., concurring)). The analysis of a free exercise claim begins with a determination of whether or not the challenged law is a neutral law of general applicability governed by Smith.
Oregon’s controlled substances act did not have any exceptions, so it was facially neutral toward religion, operationally neutral toward religion, and generally applicable. Iowa’s controlled substances act has never been facially neutral toward religion, has never been operationally neutral toward religion, and has never been generally applicable. Iowa’s CSA is even less generally applicable since 2018 when federal criminal enterprises were licensed to provide cannabis extracts to those with medical necessity. Medical necessity means not adequately treated by conventional medicines. Federal law has a process for obtaining an exemption, and Iowa does not. Iowa created a religious exception for a controlled substance by statute in 1971 identical to the federal exception. Iowa created a medical necessity exception for manufacture and distribution by statute in 2017 for which there is no corresponding federal exception because the state negligently refuses to apply for one. Iowa created a medical necessity possession-only exception in 2014 for which there was no corresponding federal exception because the state neglegently chose not to apply for one (end users are typically exempt if they obtain a controlled substance from a lawful source, but that certainly was not the case in 2014).
The Iowa Supreme Court has followed a three-step framework for analyzing whether a law is a neutral law of general applicability. See Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1, 9-11 (Iowa 2012). First, a court considers whether the law is facially neutral. Id. at 9. If a law is facially neutral, a court next considers whether the law is operationally neutral. Id. at 10. If a law is operationally neutral, a court finally considers whether the law
is generally applicable. Id. at 11.
If a court finds the challenged law satisfies all three of these tests, then Smith governs and the free exercise claim must fail. Id. at 8-9. If a court finds the challenged law fails any of these three tests, then the court must analyze whether the challenged law can pass constitutional muster under a strict scrutiny analysis. Id. A law can survive strict scrutiny if it advances interests of the highest order and is narrowly tailored to achieve those interests. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). The Free Exercise Clause does not prohibit a state from enforcing a regulatory law that is both neutral and generally applicable. Mitchell Cnty., 810 N.W.2d at 8.
Both Iowa and federal drug law fail all three tests, which is why I have always received strict scrutiny. Olsen v. Mukasey, 541 F.2d 827, 832 (8th Cir. 2008) (“Strict scrutiny was the appropriate analysis . . .”). I asked for equal protection. I lost because my religious use of marijuana was not equal to (the same as) the religious use of peyote. I am not making that same argument again. I want to participate in the state cannabis extract program that over 10,000 Iowans currently particpate in, and my use would be equal to (the same as) their use.
The specific laws that prohibit Appellant from engaging in the sacramental use of marijuana are Iowa Code section 124.204(4)(m), which places marijuana in Schedule I of the Iowa Controlled Substances Act, and Iowa Code section 124.401, which establishes criminal penalties for the unlawful possession of marijuana. Pursuant to Iowa Code chapter 124E, the legislature has authorized Iowans with specific debilitating medical conditions to legally access medical cannabidiol. Medical cannabidiol falls under the definition of marijuana in Iowa Code section 124.101(20), and is therefore a Schedule I controlled substance; however, Iowa Code section 124E.12 provides an affirmative defense to criminal prosecution for the charge of unlawful possession of marijuana to a patient in possession of medical cannabidiol with a valid registration card. In addition, Iowa Code section 124.401(5) provides that “[a] person may knowingly or intentionally recommend, possess, use, dispense, deliver, transport, or administer cannabidiol if the recommendation, possession, use, dispensing, delivery, transporting, or administering is in
accordance with the provisions of chapter 124E.” The laws cited herein are the pertinent laws to analyze in evaluating neutrality and general applicability.
“The most basic requirement of neutrality is ‘that a law not discriminate on its face.’” Mitchell Cnty., 810 N.W.2d at 9 (quoting Lukumi, 508 U.S. at 533). “‘A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.’” Id. The laws governing marijuana in Iowa are indisputably facially neutral — they do not reference religion in any way.
Appellant argues that Iowa Code chapter 124 is not neutral towards religion because of the statutory exemption for the religious use of peyote. However, this specific argument is barred by the doctrine of res judicata. The doctrine of res judicata includes both the doctrines of claim preclusion and issue preclusion. Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 571–72 (Iowa 2007). Under the doctrine of issue preclusion (also known as collateral estoppel), once a court has decided an issue of law or fact necessary to its judgment, the same issue cannot be re-litigated in a subsequent proceeding. Id. at 571. Issue preclusion serves the important dual purposes of protecting parties from “the vexation of relitigating identical issues with identical parties . . . and to further the interest of judicial economy and efficiency by preventing unnecessary litigation.” Id. at 572.
Participation in this state program is not the same as the issue determined in my prior cases. In my previous cases the state failed all three tests and then applied strict scrutiny. The final determination was based on the difference between my religious use of marijuana and the relgious use of peyote. That does not mean the state suddenly passes all three tests today. Chapter 124E did not exist when my prior cases were decided. It could not have been determined whether my participation in chapter 124E was the least restrictive means of allowing my religious use of marijuana when those cases were decided.
Our Supreme Court follows a four-factor test to determine if the issue preclusion doctrine applies to bar re-litigation of an issue — namely, the court will review whether:
Id.
Appellant’s argument that Iowa Code chapter 124 is not neutral due to the peyote exemption has been rejected several times, including by the Eighth Circuit in a prior case initiated by Appellant. Olsen v. Mukasey, 541 F.2d 827 (8th Cir. 2008). In Olsen v. Mukasey, Appellant argued “the [Controlled Substances Acts] are not generally applicable because they exempt the use of alcohol and tobacco, certain research and medical uses of marijuana, and the sacramental use of peyote.” Id. at 832. In response to this argument, the Eighth Circuit held “[g]eneral applicability does not mean absolute universality . . . [e]xceptions do not negate that the CSAs are generally applicable.” Id. Ultimately, the Eighth Circuit held that Olsen’s “free exercise claim — alone or hybrid — is barred by collateral estoppel.” Id. (Based on the fact that his free exercise claim had been previously denied by courts in State v. Olsen, 315 N.W.2d 1 (Iowa 1982); U.S. v. Rush, 738 F.2d 497 (1st Cir. 1984); and Olsen v. Drug Enforcement Admin., 878 F.2d 1458 (D.C. Cir. 1989)). The decision in Olsen v. Mukasey clearly satisfies each of the four elements necessary to invoke issue preclusion. Consequently, in light of the above case law and the doctrine of res judicata, Appellant’s arguments on this issue are barred and any reviewing body should find that Iowa’s Controlled Substances Act is facially neutral towards religion and is constitutional despite the exemption for peyote. See also McBride v. Shawnee County, 71 F.Supp.2d 1098 (D. Kansas 1999).
The department previously explained the Iowa Supreme Court applies three tests to a religious claim, whether a law is: (1) facially neutral; (2) operationally neutral; and (3) generally applicable. Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1, 9-11 (Iowa 2012). Suddenly, the department completely abandons those three tests and argues that because the law was found to be generally applicable based on identical facts (from 1978 through 2008) in all of my previous cases, somehow that makes that law pass all three tests now. If a law fails even one of those tests, strict scrutiny must be applied. Nothing new occurred between 1978 and 2008 that would change that ruling on general applicability. I made the same argument based on the same set of facts in all of them. As of 2014, the law in Iowa is no longer generally applicable. It’s no longer the same argument based on the same set of facts.
If a law is neutral on it’s face and operationally neutral, then it would automatically be generally applicable. The only reason the courts looked at general applicability in my cases was because the laws were not neutral on their face or operationally neutral, which automatically made them not generally applicable. So, the courts then found that general applicablity does not mean absolute universality. The department is taking that to the extreme by saying no analysis comparing activities is even required. If there’s a different in the activity being denied, courts can and do look at differences in the activies that are being allowed and the activities that are being denied. And that only occurs if there are some activities that are being allowed (where the law is not neutral toward religious activity). For example, the state could remove the religious and medical necessity exceptions and deny any request to add one (like Oregon in the Smith case).
The department does not understand how the compelling interest test works. It’s a test, not an absolute. And, you don’t even get to the compelling interest test without failing one or more of those first three tests: (1) facial neutrality; (2) operational neutrality; and (3) general applicability. If a law fails any of those first three test, then the fourth test is the compelling interest test. Another name for it is strict scrutiny. Although it’s true most laws will not survive strict scrutiny, I’m living proof that sometimes laws do survive the compelling interest test.
Appellant has not asserted, and would have no basis to assert, that Iowa’s Medical Cannabidiol Act is not facially neutral. There are no references to religion or any specific religious practices in Iowa Code chapter 124E. Clearly, Iowa Code chapter 124E is facially
neutral. Based on issue preclusion and a plain reading of chapter 124E, the pertinent laws are all facially neutral.
What a gross misrepresentation. Chapter 124E is an amendment to chapter 124, the same way 21 C.F.R. § 1307.31 is an amendment to 21 C.F.R. § 1308.11(d)(26). Lies and deception!
To determine operational neutrality, a court must “look beyond the language” to determine whether there is a religious practice being targeted for discriminatory treatment. Mitchell Cnty., 810 N.W.2d at 10. Appellant does not allege, and has never alleged in prior cases, that laws placing marijuana in Schedule I were passed to target the religious practices of the members of the Ethiopian Zion Coptic Church. This stands in sharp contrast to the ordinances at issue in Lukumi, wherein the City of Hialeah passed ordinances to prohibit religious animal sacrifice by members of the Santeria church. 508 U.S. at 527–28. Although the ordinances themselves did not explicitly reference religion or the Santeria church, the record overwhelming established that the city council members passed the ordinances specifically to prevent religious animal sacrifice by church members. The Supreme Court held that a facially neutral law is not neutral if the objective of the law is to infringe on certain practices due to religious motivation. Id. at 533.
Given that Iowa, along with the federal government and the remaining 49 states, enacted laws classifying marijuana as a Schedule I controlled substance to prevent drug abuse and promote the public health — and not to hinder the religious practices of the Ethiopian Zion Coptic Church — there can be no dispute that the laws are operationally neutral.
A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated.
Chapter 124 is not operationally neutral because it contains a religious exception for peyote, Iowa Code § 124.204(4)(p) (“Peyote”); Iowa Code § 124.204(8) (“Peyote”), and no process to apply for another religious exception. Chapter 124 lacks due process.
The corresponding federal law provides a process to apply for an exception for religious or secular use, 21 C.F.R. § 1307.03; 21 C.F.R. § 1308.43; and see Guidance Regarding Petitions for Religious Exemption (November 20, 2020).
Only the legislature can create exceptions from chapter 124, and it has now created another one for the secular use of marijuana, Iowa Code § 124.401(5) (“chapter 124E”). Chapter 124E creates a process to apply for the secular exception, Iowa Code § 124E.4, but lacks any process to apply for a religious exception on equal terms.
Mitchell Cnty., 810 N.W.2d at 13 (quoting Blackhawk v. Pennsylvania, 381 F.3d 202,
209 (3rd Cir. 2004)). “[F]ederal courts have generally found laws to be neutral and generally applicable when the exceptions, even if multiple, are consistent with the law’s asserted general purpose.” Id. The purpose of classifying marijuana as a Schedule I controlled substance was to prevent drug abuse and protect the public health. See Iowa Code § 124.201 (setting forth the factors to consider in making scheduling recommendations); State v. Olsen, 315 N.W.2d 1, 8–9 (Iowa 1982). This purpose applies universally to the numerous controlled substances listed in the five schedules set forth in chapter 124.
Universally, except for peyote and now marijuana. Unlike peyote, federal law provides no exception for marijuana. Iowa now allows cultivation of marijuana, manufacture of marijuana extracts, distribution of marijuana extracts, and personal use of marijuana extracts, all of which are federal crimes. If chapter 124E does not create a positive conflict with chapter 124, then neither does a religious exception for marijuana extracts on equal terms.
Appellant is specifically requesting a lawful right to purchase, possess, and use medical cannabidiol for religious purposes in accordance with Iowa Code chapter 124E. Admittedly, Iowa Code chapter 124E does provide an exception to the general law that marijuana is illegal. But it does not follow that the laws making marijuana illegal are not generally applicable. Iowa’s Medical Cannabidiol Act provides for controlled access to a controlled substance for medical use. This highly regulated access to medical cannabidiol is similar to the familiar concept of patient access to controlled substances through a prescription authorized by a health care practitioner.
The Iowa Supreme Court just rejected that same “prescription” argument in State v. Middlekauff, 974 N.W.2d 781, 794 (Iowa 2022) (“there are clear differences between what is included on a registry card and what is required for a prescription under Iowa . . . law and federal regulations”).
As previously stated, Iowa’s Controlled Substances Act establishes criminal penalties for the possession of a controlled substance. Iowa Code § 124.401. But chapter 124 also makes it lawful for an individual to possess a controlled substance if prescribed or furnished by a licensed health care professional for a legitimate medical purpose. Iowa Code § 124.401(5). For example, the possession of hydrocodone, a controlled substance, is illegal for someone who does not have a prescription for it, while the possession of hydrocodone is legal for someone who has a valid prescription. This disparity exists
because a licensed health care professional has determined that a patient under their care has a medical need for hydrocodone. The prescribing of controlled substances occurs in a highly regulated environment, with regulation by the federal Drug Enforcement Administration, the Iowa Board of Pharmacy, and the various licensing boards established under Iowa Code chapter 147 that license health care practitioners with prescriptive authority.
Let’s imagine there was a church that had used hydrocodone as its sacrament all day, every day, for centuries without any reports of deaths or injuries. Then, let’s imagine the state set up a non-prescription federal criminal enterprise to make and distribute it. To participate in the illegal scheme, the church members would not be able to use hydrocodone in unlimited quantities as they normally would, or even in the same forms they normally would.
And, unlike marijuana in Schedule I, hydrocodone in Schedule II is available by prescription, so they’d also need to show they can’t get a prescription. And the cost of the prescription would not have the overhead of 26 U.S.C. § 280E, so they’d be paying far more for the illegal stuff.
The first question is whether the state has exceptions If the state has exceptions, then the next step in the analysis to ask if there are differences between the exceptions being requested. If the state has no exceptions, that ends the Smith analysis. But, that could still leave a state constitutional argument if the state constitution provides greater protection than Smith.
But, whoever heard of a church that uses hydrocodone as its sacrament? And, centuries old? Really? Hydrocodone: Drug Enforcement Administration, Diversion Control Division, Drug & Chemical Evaluation Section, October 2019. Hydrocodone was patented in 1923. Wikipedia (“Hydrocodone is a semisynthetic opioid, converted from codeine or less often from thebaine”).
Iowa’s Medical Cannabidiol Act — the “exception” cited by Appellant — is analogous to the allowance in chapter 124 for access to controlled substances via prescription for a medical reason. Neither chapter 124 nor chapter 124E establish a system of government assessment of individual exemptions. Rather, they establish the allowance for medical use of controlled substances as authorized (either through a prescription in chapter 124 or a written certification of a debilitating medical condition in chapter 124E) by a patient’s health care provider. This medical allowance is categorically unique. It allows health care providers to authorize treatment of medical conditions using controlled substances. Chapter 124E does not authorize use of medical cannabidiol outside of a medical context in which a health care practitioner diagnoses, or affirms a diagnosis for, a patient with a debilitating medical condition and provides the patient with explanatory information about the “therapeutic use of medical cannabidiol and the possible risks, benefits, and side effects of the proposed treatment.” Iowa Code § 124E.3. Use of a controlled substance for medical treatment does not undermine the goals of the Controlled Substances Act to prevent drug abuse and protect the public health. Society has recognized that tightly controlled access to controlled substances is a cornerstone of medical care. Because of the nature of this excepted category of use, the laws prohibiting the use of marijuana
outside of the medical context remain generally applicable and the State can refuse to extend access to medical cannabidiol to individuals with a religious hardship. A contrary finding would allow a person to seek access to any controlled substance of their choosing, including opioids that have led to the ongoing opioid epidemic, for religious use.
Middlekauff, at 796:
Another hurdle to a claim that the registry card or written certification is a medication order is that medication orders have similar labeling requirements to a prescription (drug name, strength, and dosage, as well as directions for use). See Iowa Code § 155A.27(4)(a)(3)-(4); Iowa Admin. Code r. 657-7.13(1)(b)-(c) (2019). As described above, the registry card and written certification both fail to meet these requirements.”).
Middlekauff, at 798:
neither Iowa . . . nor federal law allow prescriptions for schedule I drugs because schedule I drugs, for purposes of the CSA’s, have no legitimate medical use by statutory classification”.
Middlekauff, at 800:
This document, the written certification in this case, is essentially a physical manifestation of the physician’s and patient’s First Amendment right to openly and candidly discuss appropriate medical treatments, including medical marijuana. Conant, 309 F.3d at 637-38; see, e.g., Bourgoin, 187 A.3d at 16 n.5 (“Thus, a ‘written certification’ for medical marijuana authorized by the [Maine Medical Use of Marijuana Act], even when issued by a medical ‘practitioner’ . . ., is not a ‘valid prescription or order’ that would exempt the resulting marijuana possession from the purview of the CSA.“ (citations omitted)).
UDV, at 430:
The Government’s second line of argument rests on the Controlled Substances Act itself. The Government contends that the Act’s description of Schedule I substances as having “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use . . . under medical supervision,” 21 U.S.C. § 812(b)(1), by itself precludes any consideration of individualized exceptions such as that sought by the UDV. The Government goes on to argue that the regulatory regime established by the Act — a “closed” system that prohibits all use of controlled substances except as authorized by the Act itself, see Gonzales v. Raich, 545 U.S. 1, 13 (2005) — “cannot function with its necessary rigor and comprehensiveness if subjected to judicial exemptions.” Brief for Petitioners 18. According to the Government, there would be no way to cabin religious exceptions once recognized, and “the public will misread” such exceptions as signaling that the substance at issue is not harmful after all. 545 U.S. at 23-24. Under the Government’s view, there is no need to assess the particulars of the UDV’s use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions.
UDV, at 432:
Under the more focused inquiry required by . . . the compelling interest test, the Government’s mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day.
Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its burden
And in fact an exception has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote — a Schedule I substance
UDV, at 434:
In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the Tribes justifies allowing their use of peyote? Nothing about the unique political status of the Tribes makes their members immune from the health risks the Government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the Tribes use in religious exercise from the alleged risk of diversion.
The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions
UDV, at 435:
the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program.
UDV, at 436:
We had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way” to specific claims for exemptions as they arose. Nothing in our opinion suggested that courts were not up to the task.
Because the laws making controlled substances, including marijuana, illegal except for medical purposes are neutral and generally applicable, they “need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Lukumi, 508 U.S. at 531. The Free Exercise Clause does not relieve someone of obligation to comply with a valid and neutral law of general applicability. Smith, 494 U.S. at 879-80. Therefore, there is no basis to declare Iowa Code chapter 124 or 124E unconstitutional as Appellant urges.
Even a contrary finding would not necessarily result in a mandate for the Department to issue Appellant a registration card. Based on the record established at the contested case hearing, Appellant has not demonstrated how access to medical cannabidiol — as that term is defined in Iowa Code section 124E.2(10) and 641 IAC 154.1 — would allow him to practice his religion consistent with the beliefs of the Ethiopian Zion Coptic Church. Specifically, Appellant has indicated through testimony at hearing and in prior litigation that his religious use primarily entails smoking marijuana — a practice expressly prohibited by the Act. Iowa Code § 124E.17.
Iowa does not allow raw cannabis. But, it’ not inconceivable. See House File 2307 (introduced on February 9, 2022), to allow the use of combustible dried raw cannabis as medical cannabidiol. In May 2021, Minnesota added raw cannabis — including smoking — to its medical cannabis program. Minnesota Session Laws – 2021, Regular Session, Chapter 30 – House File 2128, § 29.
IV. CONCLUSION
The Department’s denial of Appellant’s application for a registration card should be AFFIRMED.
THOMAS J. MILLER IOWA ATTORNEY GENERAL /s/ Heather Adams HEATHER ADAMS Assistant Attorney General /s/ Laura Steffensmeier LAURA STEFFENSMEIER Assistant Attorney General ATTORNEYS FOR IOWA DEPARTMENT OF PUBLIC HEALTH Copy to: Colin Murphy ATTORNEY FOR APPELLANT