Law Writing in the United States

Special Instructions:

In this portion of the class we have discussed “fundamental rights” – those rights that, although not specified in the U.S. Constitution or passed by any legislative body, have become legally protected rights through the common law rulings of judges. Fundament rights are also referred to as “substantive due process,” “privacy” or “liberty” rights. These terms are often interchangeable by courts and sometimes hard to differentiate.

Still, “fundamental rights” are few and far between. Because these are judicially created rights, courts should be cautious in granting new rights.

Judges should begin their assessment of whether a right is fundamental by looking at the text of the U.S. Constitution. If the claimed right is not listed in the U.S. Constitution, judges should next look toward history to determine if the claimed right is anchored in history and implicit in the concept of ordered liberty. The best practice is to ensure that the claimed right is carefully and narrowly phrased. The Glucksberg case gives a solid example of this approach.

The following is the actual final exam question I gave in my basic Constitutional Law course in the past. Because you will be taking final exams throughout your studies here, I wanted you to have a final exam experience without the same sense of urgency.

This is a word limited question. You may not use more than 400 words to respond. I expect you will deliberately choose your words. Best of luck!

Medical Marijuana in the United States – Fundamental Right or Legal Wrong?

Charlie Erickson is a 40-year-old man. He has an unusually painful, non- terminal disease. For many months, Charlie and his doctor have struggled to manage his pain. They have tried numerous traditional approaches. None have worked. Despite high medical bills and various experimental medications, Charlie experiences nearly daily and debilitating pain. His pain interferes with his work, his marriage, and many of his life activities.

Charlie has not yet resorted to opioid use. He and his doctor have discussed the risks and potential effectiveness of opioids. Johns Hopkins hospital, a leading American hospital, describes opioids as “a class of drugs naturally found in the opium poppy plant that work in the brain to produce a variety of effects, including the relief of pain.” Johns Hopkins notes that while “[o]pioids can be prescription medications often referred to as painkillers . . . they can [also] be so-called street drugs, such as heroin.” The most common prescription opioids are OxyContin, Vicodin, morphine and fentanyl. Fentanyl is also made illegally and in its synthetic form it is between 50-100 times more potent than morphine. Opioids were responsible for nearly 70% of all drug overdose deaths in 2017. The CDC reports that, on average, 130 Americans die each day from opioid overdose.

Because Charlie has certain family risk factors, both Charlie and his doctor are reluctant for him to use opioids. Both agree, that in Charlie’s case, opioids are potentially unsafe. Regular opioid use can increase a person’s tolerance and dependence on opioids. This, in turn, often requires that individuals using opioids resort to higher and more frequent doses. Having evaluated the opioids risks, Charlie’s doctor recommended that Charlie travel someplace where marijuana is legal to see if marijuana could help control his pain.

Following this advice, Charlie traveled to Germany, a country where medical marijuana is legal. Charlie found medical marijuana notably helpful in relieving his pain. Upon his return, Charlie and his doctor agreed that Charlie should either move to a country where medical marijuana is legal or a state where there is state-wide access to marijuana. Charlie is reluctant to use state laws for accessing marijuana because he fears those laws could change or, worse still, that the federal government could arrest him for violating federal law. Charlie does not want to move. He has a successful job in Texas. His children are still in elementary school. And, his wife does not want to relocate. Charlies wants the right to access the health care his doctor recommends here in the United States.

Charlie believes he has a constitutional right to access medical marijuana.

He believes this right is similar to a woman’s right to access abortion. He believes that health care decisions, made in consultation with an individual’s treating physician, have long been protected in the United States. From accessing contraceptives to having the right to refuse unwanted medical care, Charlie claims our Constitution protects the right to seek established medical treatment following consultation with a person’s doctor. Charlie further challenges that the government cannot force a person to resort to a course of treatment even the CDC and President acknowledge is risky (opioids) despite proof that a less risky alternative exists and is effective. If the Constitution means anything, Charlie asserts, it must mean the right to access a commonly prescribed medical treatment.

Marijuana has a mixed history in the United States.

Marijuana cultivation began in the United States around 1600 with the Jamestown settlers, who began growing the cannabis sativa or hemp plant for its unusually strong fiber that was used to make rope, sails, and clothing. Until after the Civil War, marijuana was a source of major revenue for the United States.

During the 19th century marijuana plantations flourished in Mississippi, Georgia,

California, South Carolina, Nebraska, New York, and Kentucky. Also, during this period, smoking hashish, a stronger preparation of marijuana derived from the dried resin of the plant, was popular throughout France and to a lesser degree in the United States.

Americans and Europeans have known about marijuana’s medicinal benefits since at least the 1830s. Around that time, Sir William Brooke

O’Shaughnessy, an Irish doctor studying in India, documented that cannabis extracts could ease cholera symptoms like stomach pain and vomiting. By the late 19th century, Americans and Europeans could buy cannabis extracts in pharmacies and doctors’ offices to help with stomach aches, migraines, inflammation, insomnia, and other ailments. Between 1850 and 1937 marijuana was widely used throughout United States as a medicinal drug and could easily be purchased in pharmacies and general stores. Modern research confirms that

marijuana has real medical benefits. For example, marijuana can decrease seizures and alleviate pain without causing physical dependence. Further, scientific research has proven alcohol to be more dangerous than marijuana.

The U.S. Drug Enforcement Administration’s fact sheet on marijuana indicates that “No death from overdose of marijuana has been reported.”

Even though there was no evidence to support claims that marijuana’s alleged dangerous effects outweighed its medical benefits, fears about marijuana use began to appear in the 1910s.  Growing fears resulted in 29 states outlawing all marijuana use between 1916 and 1931.

Congress passed the Marihuana Tax Act of 1937 essentially banning marijuana throughout the nation. Congress passed the law over the American Medical Association’s strong objections related to marijuana’s effective medical use. The Tax Act act came just a year after the film Reefer Madness warned parents that drug dealers would invite their teenagers to jazz parties and get them hooked on “reefer.” Marijuana’s image had changed and changes in the law soon followed.

Between 1937 and the present, most Presidential Administrations have held an aggressive stance toward outlawing all forms of marijuana use. In 1986, President Reagan signed the Anti-Drug Abuse Act, imposing mandatory minimum sentences for marijuana offenses and raising federal penalties for possession and distribution of marijuana. In 1996, despite strong federal sentiment against marijuana, California enacted Proposition 215, which legalized medical marijuana use for people suffering from AIDS, cancer, and other serious illnesses. A similar bill was passed in Arizona the same year. Over the past 20 years, many states have moved toward legalizing marijuana – at least for medical purposes.

Currently, medical marijuana is legal in 35 states, the District of Columbia and 30 countries. Germany, where Charlie initially sought treatment, has a medical marijuana market exceeding $250 million dollars per year. Medical marijuana is legal in Canada, Mexico, Australia, much of South American and most of Europe. In addition, medical marijuana is available in South Korea, Sri Lanka, Israel, and, Zimbabwe. Canada claims the world’s largest market for marijuana use since marijuana is legal for any use at the federal level in Canada. If there is any momentum regarding medical marijuana, it is toward legalization.

In fact, just this month (November, 2019), the House Judiciary Committee voted the following legislation out of Committee to be considered by the full House of Representatives. This Bill is not yet law and would still require a positive vote by full House, the Senate and a signature by the President. There is no way to predict whether the following will become an actual law:

116TH CONGRESS

1st Session

H. R. 3884

To decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 23, 2019

Mr. NADLER (for himself, Ms. LEE of California, Mr. BLUMENAUER, Mr. JEFFRIES, Ms. VELÁZQUEZ, Mr. GAETZ, Mr. CICILLINE, Mr. COHEN, Mr. CORREA, Ms. DEAN, Mr. DEUTCH, Ms. ESCOBAR,

Ms. JACKSON LEE, Ms. JAYAPAL, Mr. JOHNSON of Georgia, Mr. TED LIEU of California, Ms. LOFGREN, Mr. RASKIN, Mr. SWALWELL of California, Mr. EVANS, Ms. GABBARD, Ms. HAALAND, Mr. HUFFMAN, Mr. KHANNA, Mr. MCGOVERN, Ms. NORTON, Mr. PERLMUTTER, Ms. PRESSLEY, Ms. WATERS, and

Mrs. WATSON COLEMAN) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Energy and Commerce, Agriculture, Education and Labor, Ways and Means, Small Business, Natural Resources, and Oversight and Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Marijuana Opportunity Reinvestment and Expungement Act of 2019” or the “MORE Act of 2019”.

SEC. 2. DECRIMINALIZATION OF CANNABIS.

• CANNABIS REMOVED FROM SCHEDULE OF CONTROLLED SUBSTANCES .—

• REMOVAL IN STATUTE.—Subsection (c) of schedule I of section 202(c) of the Controlled Substances Act (21 U.S.C. 812) is amended—

• by striking “(10) Marihuana.”; and

• by striking “(17) Tetrahydrocannabinols, except for tetrahydrocannabinols in hemp (as defined in section 297A of the Agricultural Marketing Act of 1946).”.

• REMOVAL FROM SCHEDULE.—Not later than 180 days after the date of the enactment of this Act, the Attorney General shall finalize a rulemaking under section 201(a)(2) removing marihuana and tetrahydrocannabinols from the schedules of controlled substances. Marihuana and tetrahydrocannabinols shall each be deemed to be a drug or other substance that does not meet the requirements for inclusion in any schedule. A rulemaking under this paragraph shall be considered to have taken effect as of the date of enactment of this Act for purposes of any offense committed, case pending, conviction entered, and, in the case of a juvenile, any offense committed, case pending, and adjudication of juvenile delinquency entered before, on, or after the date of enactment of this Act.

Regardless of this Bill’s status, it remains true that the federal government’s reluctance to allow medical marijuana use appears out of step with the majority of American states, the American people and, increasingly, the world. The Pew Research Center found that over 60% of Americans think marijuana should be legalized. Support rises to nearly 90% when the issue is narrowed to medical marijuana. Beyond popular opinion and desire for access to medical marijuana, science appears to support Charlie’s claim. A 2017 report by the National Academies of Sciences, Engineering, and Medicine found “conclusive or substantial” evidence that medical use of marijuana is an effective treatment for chronic pain. Medicare’s own drug database shows a 14% reduction in opioid prescriptions in states where medical marijuana is legal. Medical marijuana appears to be improving lives. The federal government’s approach puts Charlie at risk even while much of the rest of the world (and individual states) offers help.

Charlie is in crisis. His continuing pain places him at the crossroads of immediate choice. To avoid arrest, to avoid moving and to avoid beginning opioid treatment, Charlie filed suit in federal court seeking a declaratory judgment permitting him to receive medicinally approved amounts of marijuana pursuant to his doctor’s judgment. He asserts two main claims:

First, Charlie asserts that federally criminalizing medical marijuana violates Article I’s Interstate Commerce Clause because the true prohibition is not an article of commerce (marijuana) but the act of physicians advising their patients about effective medical treatments. Charlie relies upon the Lopez (gun possession) and Morrison (sexual assault at college dorm) cases for support of his claim.

Second, Charlie asserts a fundamental right to access medical marijuana.

Charlie claims that the language in Casey addressing the right of a person to define their own concept of “liberty” and cases expanding privacy support this right. He further asserts that all past cases involving physician-patient rights, such as Griswold and Roe constitutionalize the right to follow a physician’s medically- accepted course of treatment.

You work for the Honorable Jane J. Boyle, U.S. District Judge for the Northern District of Texas. She is trying to determine whether the above facts establish that Charlie has a fundamental right to access medical care or use medical marijuana. She is not certain, yet, how to frame this potential “fundamental right.”

Because Judge Boyle is very busy, she does not want your answer to exceed 400 words. She would like your clear and succinct advice on this important Constitutional question. She is a highly respected judge and does not want to see her decision reversed on appeal.