PLAINTIFFS’ MEMORANDUM IN SUPPORT OF
MOTION FOR RECONSIDERATION

SUMMARY OF ARGUMENT

        The plaintiffs rely on authority in the Supreme Court of the United States and other precedents not previously cited, which establish the existence of a fundamental constitutional right with which each plaintiff is individually endowed throughout their lives.  That fundamental constitutional right guarantees protection from the federal government's interference with their right to receive medicine, recommended by their doctors, if that medicine either: (a) substantially improves the quality of their lives, by relief of an otherwise total or substantial impairment, through the effective control of otherwise intractable pain or mental impairment, to an extent not provided by lawful or affordable medication; (b) that medicine stabilizes or deters otherwise life-threatening medical conditions, to an extent not provided by lawful or affordable medication.  This constitutional right differs from an asserted desire for a specific medication or treatment, as being preferable or merely somewhat more effective.  For some or all plaintiffs herein, the government's prohibition of their medicine, therapeutic cannabis, interferes with their fundamental right to live, be well, and enjoy the highest quality of life, or death.
        The plaintiffs are prepared to prove: (1) their specific medicinal benefits from the use of federally-prohibited therapeutic cannabis; (2) the unique superiority of such relief to legal, or more expensive medication; (3) their doctors' confirmation and recommendation of those benefits; and, (4) the government's lack of a sufficiently tailored and compelling interest which is superior to the fundamental rights of the plaintiffs – people who experience significant relief from many diseases and disorders by the medicinal use of marijuana.

THE GOVERNMENT'S ABSOLUTE BAN ON THE MEDICAL USE OF CANNABIS VIOLATES THE PLAINTIFFS' SUBSTANTIVE DUE PROCESS RIGHTS.

A.  Plaintiffs Enjoy Constitutional Protection of Their Fundamental Liberty Interests

        The United States Supreme Court has established that individuals are protected under the Due Process clauses of the Fourteenth and Fifth Amendments from state or federal infringement upon their "fundamental liberty interests."  As Justice Rehnquist recently described in Washington v. Glucksberg, ___ U.S. ___, 117 S. Ct. 2258 (1997):

        The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint.... The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.

Glucksberg, at 2267 (citations omitted).
        In applying substantive due process analysis, the Chief Justice in Glucksberg explained that where a fundamental liberty interest is involved, government action must be "narrowly tailored to serve a compelling [government] interest."  Id., at 2268.

B.  Plaintiffs Have A Substantive Due Process Interest In Receiving Medical
Treatment For Their Serious and Debilitating Medical Conditions

        Plaintiffs assert Constitutional protection from the federal government's interference with their right to legally obtain medical cannabis for treatment of painful and life-threatening medical conditions.  Plaintiffs can show that they suffer from various medical conditions that can be alleviated, relieved, or reduced by treatment with cannabis.  Without the treatment some will suffer pain, some will risk blindness, and others will die by wasting away.  The only barrier to this treatment is the broad federal proscription against the distribution of marijuana.  For three separate and independent reasons, the interest asserted by plaintiffs, the right to receive medical treatment for a serious debilitating medical condition, is a fundamental right protected by the Constitution.
        First, there is no liberty more firmly established than the fundamental interest to be free from physical pain imposed by the government for arbitrary and capricious reasons.  The Supreme Court has continuously and persistently measured and evaluated substantive due process claims in terms of the physical pain imposed upon the individual by government restraints.  See e.g. Furman v. Georgia, 408 U.S. 238 (1972) (substantive due process implicated where death penalty imposed under a method inflicting "unnecessary pain"); Cruzan v. Director, MDH, 497 U.S. 261 (1990) (pain suffered by patient in persistent vegetative state relevant to inquiry of fundamental interest to deprive oneself of nutrition and hydration); Planned Parenthood v. Casey, 505 U.S. 833 (1992) ("anxieties," "physical constraints," and "pain" of women carrying child to term basis of substantive due process right to elect abortion); and Washington v. Glucksberg, ___ U.S. ___, 117 S. Ct. 2258 (1997) (terminally ill patient rights to palliative treatment implicate substantive due process).
        The concurring opinions in Glucksberg also suggest that substantive due process protects an individual's right to obtain medical treatment to alleviate unnecessary pain. Justice O'Connor's opinion makes clear that suffering patients are presumed to have access to any palliative medication that would alleviate pain even where such medication might hasten death. "[A] patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians." Glucksberg, at 2303 (emphasis added).
        Similarly, Justice Breyer's concurrence suggested that a "right to die with dignity" would include a right to "the avoidance of unnecessary and severe physical suffering."  Glucksberg, at 2311 (J. Breyer, concurring).  "This liberty interest in bodily integrity was phrased ... by [Justice] Cardozo when he said, '[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body' in relation to his medical needs." Glucksberg, at 2288 (Souter, J., concurring).
        Justice Stevens asserted with regard to the protected "sphere of substantive liberty":

        Whatever the outer limits of the concept may be, it definitely includes protection for matters "central to personal dignity and autonomy." It includes, "the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny". The Court has referred to such decisions as implicating 'basic values,' as being 'fundamental,' and as being dignified by history and tradition.

Glucksberg, at 2307 (Stevens, J., concurring) (citation omitted).
        Finally, Justice Stevens observed that "[a]voiding intolerable pain and the indignity of living one's final days incapacitated and in agony is certainly [a]t the heart of [the] liberty ... to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."  Glucksberg, at 2307 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).
        Second, plaintiffs have an established fundamental interest in the right to provide care for oneself.  The Supreme Court has found due process interests in preserving life and caring for oneself. Deshaney v. Winnebago Cty., 489 U.S. 189, 200 (1989).  Although this right is usually implicated where an individual is incarcerated and does not have access to necessary medical treatment, the argument is equally applicable to a situation where the government denies medical treatment by enacting laws proscribing such treatment:

In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause.

Deshaney, 489 U.S. at 200 (citation omitted).
        The government's restraint on the distribution of cannabis prevents plaintiffs from obtaining medical care for themselves.  This restraint is particularly egregious where the treatment sought is that to alleviate pain.
        Third, plaintiffs have an unquestionable and firmly rooted liberty interest in preserving their lives.  As the Supreme Court explained in Cruzan, supra, "[i]t cannot be disputed that the Due Process Clause protects an interest in life."  Cruzan, at 281.  Plaintiffs can show that many in their ranks would find their lives needlessly placed in jeopardy were they denied the right to the medical use of cannabis.  For example, many chemotherapy patients and AIDS patients are so plagued with nausea and discomfort that they are unable to eat.  Without basic nourishment, their conditions are aggravated and they are essentially at risk of starving to death.
        For all of these reasons, the government's actions plainly infringe upon the well-established fundamental rights of plaintiffs.   Accordingly, the government bears the burden of justifying these restrictions.   As discussed below, the government cannot meet this burden.

C.  Application Of Substantive Due Process Analysis To Plaintiffs

        Plaintiffs fall into two classes: 1) those for whom cannabis is the preferred treatment, and 2) those for whom cannabis is the only effective treatment available.  The application of Substantive Due Process requires a separate analysis for each class.

1.  Plaintiffs For Whom Treatment With Medical Cannabis Is The Preferred,
Though Not Exclusive, Available Treatment

        Plaintiffs concede that their fundamental right to receive medical treatment does not necessarily include a fundamental right to a particular medical treatment.  However, where the government has chosen to restrict access to a particular treatment or provider, courts have recognized that such restriction violates constitutional rights if the government's restrictions are irrational or arbitrary.  Connecticut v. Menillo, 423 U.S. 9 (1975) (state may require that abortions be performed only by licensed physicians, even in the first trimester of pregnancy); Mitchell v. Clayton, 995 F.2d 772, 774 (7th Cir. 1993) (state regulation of acupuncture evaluated under rational basis test); New York State Ophthalmological Soc'y v. Bowen, 854 F.2d 1379 (D.C. Cir. 1988) (state regulation of ophthalmology not entitled to strict scrutiny review); Carnohan v. United States, 616 F.2d 1120, 1122 (9th Cir. 1980) (government ban on Laetrile permissible where party challenging the ban fails to show that government regulation of laetrile traffic bears no reasonable relation to the legitimate state purpose of protecting public health).
        "Where rational basis review is appropriate, a statute withstands a substantive due process challenge if the state identifies a legitimate state interest that the legislature rationally could conclude was served by the statute."  Sammon v. New Jersey, 66 F.3d 639 (3rd Cir. 1995).
        Plaintiffs allege in their complaint that cannabis is an extraordinarily safe and effective medicine.  (For example, while more than 1000 Americans die annually from aspirin toxicity, not a single human being has ever died as a result of cannabis toxicity).  In promulgating the Controlled Substances Act, Congress declared that "[m]any... drugs... have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people."  21 USC §801(1). Congress further declared that "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."  21 USC § 801(2).  Plaintiffs acknowledge that the government has a legitimate interest both in assuring that appropriate medicines are made available, and in stemming the abuse of controlled substances.
        In the case of numerous substances, including cocaine, opiates, amphetamines, barbiturates, and even thalidomide, the government has acted to provide for medical use while limiting abuse.  In the case of cannabis, plaintiffs allege that the means employed by the government abysmally fail to accomplish the purpose stated in 21 USC § 801(1).  Plaintiffs should therefore not be precluded from establishing the arbitrary and irrational nature of the ban without requiring of the government even a hint of explanation of the reasoning behind the ban of all medical use of cannabis.

2.  Plaintiffs For Whom Treatment With Medical Cannabis Is The Only Effective
Treatment Though Not Exclusive, Available Treatment

        When applied to plaintiffs’ for whom cannabis is the only effective treatment, the government's ban on treatment with cannabis is effectively a bar to those plaintiffs above-mentioned fundamental right to receive medical treatment.  As such, the government's actions must be analyzed under a traditional strict scrutiny standard.  The government must establish a compelling interest and the use of the least restrictive means to achieve that interest.  Plaintiffs allege that the government can do neither

a.  The Broad Federal Proscription against Distribution and Use of Medical Cannabis
Is Not Narrowly Tailored To Meet A Compelling Government Interest

        Where fundamental liberty interests have been demonstrated, any restraint on those interests must be narrowly tailored to serve a compelling state interest.  Glucksberg, at 2268.  The federal proscription against the possession and distribution of medical cannabis is unnecessarily overbroad and arbitrary where it restrains the terminally ill and others in chronic pain from obtaining an essential medication to alleviate their pain and in some cases contribute to the preservation of life.  See Andrews v. Ballard, 498 F. Supp. 1038, 1044-1051, 1052, 1056 (S.D. Tx. 1980) (recognizing constitutional right to obtain medical treatment for pain and holding that state restriction on availability of acupuncture was not narrowly drawn to further compelling state interest).
        The government has a legitimate interest both in assuring that appropriate medicines are made available, and in stemming the abuse of controlled substances.  The government cannot show, however, that a blanket prohibition, disregarding the medical needs of seriously ill persons for whom cannabis is the only effective treatment, furthers any legitimate interest.  In the case of numerous other substances, including cocaine and morphine, the government has acted to provide for medical use while limiting abuse.  In the case of medical cannabis, however, the means employed by the government abysmally fail to accomplish the government's purposes and are therefore an affront to the concept of substantive due process.
        Thus the government's application of the Controlled Substances Act to the distribution of medical cannabis violates the substantive due process rights of plaintiffs to be free from unnecessary pain, to receive palliative treatment for a painful medical condition, to care for oneself and to preserve one's own life.  Plaintiffs are entitled to present this evidence at trial.

CONCLUSION

        For all of the foregoing reasons, plaintiffs’ pray that the Court grant their Motion for Reconsideration.

Respectfully submitted,

Lawrence Elliott Hirsch

Of Counsel:

William J. Panzer
Michael J. Cutler
C. Gary Wainwright
Gatewood Galbraith