By David Wenger, Esq.

NEW YORK: Should a 12-year-old girl in Colorado with intractable epilepsy be restricted to the boundaries of Colorado in order to have access to life-saving medical cannabis?

Alexis Bortell suffered from multiple daily seizures and nearly died in her disabled veteran father’s arms several times until she began using medical cannabis—since then, she has not had a seizure in four years. Should she be prevented from travelling with her medication, not receive in-state tuition rates because she was forced to move from Texas, and not receive any Veterans Benefits coverage for her medication?

Should the parents of a 7-year old boy from Georgia be able to provide medical cannabis to him to keep him alive?

Jagger Cotte was diagnosed at age one with Leigh’s Disease, a rare congenital disease which kills 95 percent of afflicted babies by age four if diagnosed by age two. He became a one-year-old hospice patient, unable to speak, walk, masticate food, and otherwise handle daily activities. He began experiencing near-constant pain, shrieking in agony. Until he began treatment with medical cannabis. He suddenly stopped screaming in pain, has been able to interact with his parents, and against all medical odds, is still alive! Should Jagger’s parents face the Hobson’s choice of foregoing their son’s medical treatment and subjecting him to the uncompromisingly painful and ultimately fatal effects of his illness, or procuring and providing and traveling with medical cannabis for their son in violation of federal law?

Should a Veteran machine-gunner from Florida who served in Iraq for 14 months be denied Veterans Administration access to the only medication that works for his PTSD?

Jose Belen witnessed severe close-range combat and watched several of his close-friends including his best friend and roommate die violently in front of him. He returned home broken, often suicidal, unable to forget the horrors of what he saw, and was declared mostly-disabled by PTSD. He started treating with medical cannabis—and is now able to cope with his PTSD and lead a productive life. Should the VA prescribe and pay for his medication after his service to the country?

These are among the questions at stake in the federal appellate court case Washington v. Whitaker (formerly Washington v. Sessions, Case No. 18-859) argued before the Second Circuit Court of Appeals in New York City on Wednesday, December 12, 2018 challenging the constitutionality of the Controlled Substances Act’s Schedule 1 classification of ‘marihuana.’ Schedule 1 requires a drug to have “no currently accepted medical use in treatment.” (21 U.S.C. § 812(b)(1)).

In the lower court, Southern District of New York Judge Alvin K. Hellerstein dismissed the Complaint challenging Schedule 1’s constitutionality, not on the merits, but on legal procedural grounds. He found that the Plaintiffs were required to exhaust their remedies through the administrative DEA rescheduling petitioning process, which the Plaintiffs claimed is futile. Judge Hellerstein wrote: “I emphasize that this decision is not on the merits of plaintiffs’ claim . . . this decision should not be understood as a factual finding that marijuana lacks any medical use in the United States . . .” (SDNY Case No. 17-cv-5625, Opinion & Order at 12). During the oral argument on February 14, 2018, Judge Hellerstein had said to Plaintiffs’ counsel Michael Hiller: “How could anyone say that your clients’ lives have not been saved by marijuana?”

Reacting to Judge Hellerstein’s decision on procedural grounds, Mr. Hiller commented:

“Resigning the plaintiffs to the petitioning administrative process is tantamount to a death sentence for those patients who need cannabis to live. The time has come for the courts to abandon decades-old precedent, notched with obsolete legal technicalities, and catch up with modern science and contemporary principles of constitutional law . . . . This case will continue to move forward. Notwithstanding the outcome today, we remain confident that the final disposition of this case will include a finding that the classification of cannabis under the [CSA] is unconstitutional – freeing millions of Americans to safely treat their conditions with a plant that maintains their health and their lives.”

On Wednesday December 12, Second Circuit Court of Appeals Judges Dennis Jacobs, Guido Calabresi, and Jed Rakoff (by designation) listened intently to the constitutionality challenge to the Schedule 1 classification. Mr. Hiller told the Court that: 2.1 million patients across the United States rely on medical cannabis to treat illnesses and ailments; the Plaintiffs/Appellants’ ‘right to life’ is infringed by their inability to treat themselves with available medication; Judge Hellerstein had said there was no question on the merits; 33 states have legalized medical cannabis; and the US government holds numerous medical cannabis patents.

The questions and comments from the Panel of judges at oral argument were truly remarkable.

Judge Jacobs asked rhetorically: “We have a situation where one part of the government [FDA] said it’s a medicine and another part of the government [DEA] says it’s a crime to use?”

Judge Calabresi, citing how courts in other constitutional systems provide guidance to administrative agencies, asked: “Should the Court tell the FDA/DEA to expedite a review of cannabis, i.e. tell the agencies that Schedule 1 will be ruled unconstitutional so the agencies should take expedited action?” In response, Judge Jacobs said: “We might be able to rush it along.”

Judge Rakoff, known for making historic, transformative decisions, remarked: “The usefulness of cannabis for medicine has been known for decades.” He asked: “Why can’t the Court just take judicial notice that medical use of cannabis is proven?”

Despite these eye-opening remarks from the judges, the outcome at the Second Circuit is impossible to predict. Among potential outcomes, the Court may: affirm the lower court’s decision without a reasoned decision, affirm the lower court’s decision but with wording in line with Judge Calabresi’s suggestion urging the administrative agencies to reschedule, send the case back to the district court for a hearing on the merits, or as Judge Rakoff suggested the Court can take judicial notice that medical use of cannabis is proven and strike down Schedule 1 as unconstitutional for lack of any rational basis.

The timing is also unpredictable – a decision may issue within a week, usually within six months. Any outcome other than a remand to the lower Court will likely be placed before the Supreme Court.

Throughout history, the courts have been called upon to address fundamental social and societal questions. In instances where Congress and government agencies sometimes struggle to address these questions, the courts are often the source of change, such as with legalizing abortion and gay marriage.

The Second Circuit judges at the argument clearly fully appreciated the absurdity that is Schedule 1’s classification of cannabis. Watch closely.

David Wenger is a New York City attorney and specialist in the US cannabis industry. David is the author of the seminal White Paper on the industry, “The Green Regulatory Arbitrage: A Case For Investing In US Multi-State Vertically-Integrated Cannabis Companies,” published on New Cannabis Ventures. The Paper is available here.