Supreme Court to Weigh Pot Legalization Case

By Willis Jacobson
Oct 8, 2020

The U.S. Supreme Court is set to consider whether to hear a case challenging the constitutionality of marijuana’s federal illegality. If the high court takes the case, it could lead to a major win, or yet another setback, for the legalization movement.

Friday’s conference will focus on Washington v. Barr, a case pitting a group of cannabis advocates and MED patients, led by former Super Bowl-winning NFL player Marvin Washington, against U.S. Attorney General William Barr. The plaintiffs, who face long odds against the case moving forward, seek to overturn the classification of cannabis as a Schedule I drug.

The plaintiffs in the lawsuit, initially filed in 2017, have received support from throughout the industry, and even from members of Congress, as they have waged one of the more significant battles against federal prohibition.

On Friday, the Supreme Court justices will weigh the plaintiffs’ appeal of a lower court’s ruling that they must first exhaust administrative remedies with the U.S. Drug Enforcement Administration before challenging the legality of marijuana’s classification in court. The plaintiffs argue, among other things, that the DEA – part of the U.S. Justice Department – has shown itself incapable of providing the requested relief and, further, that the prohibition of marijuana violates their constitutional rights to access lifesaving medication.

New York City-based Hiller PC attorney Michael Hiller, who represents the plaintiffs, noted Thursday that the stakes are high. The Supreme Court justices will review each side’s argument and if four of them vote to take the case, the appeal will advance to the Supreme Court.

If the Supreme Court decides to hear the case – a decision is expected early next week – it could lead to the removal of cannabis from the Controlled Substances Act, or potentially another loss in the legalization effort. Hiller, pointing to decades of unsuccessful challenges to the DEA’s classification, said the former move would be long overdue.

“We’re not asking the court to change society,” he said. “We’re asking the court to recognize how society has advanced, and how understanding of cannabis has advanced, and to simply take the foot off our necks, if you will, when it comes to the law.”


Access to MED

Plaintiffs in the case include 15-year-old Alexis Bortell.

When she was 10 years old and living in Texas, Bortell began experiencing life-threatening epileptic seizures. When doctors proposed an experimental brain surgery, her parents decided to move to Colorado to try treating her with cannabinoids.

Bortell said Thursday that she hasn’t experienced a seizure since she began using a THC-CBD oil more than five years ago. She takes the medication orally twice per day.

But that doesn’t mean everything has gone smoothly.

Because she needs to have her federally illegal medication on her at all times, she has missed out on many opportunities. 

She can’t fly on airplanes, which has made her ineligible for school field trips and unable to visit some relatives. She also can’t go on federal land, which creates problems because both her parents are military veterans.

Despite Bortell’s eligibility for several military-family benefits, she can’t visit military bases to access those benefits. She also can’t visit national parks, even though her parents’ service qualifies the family for free admission.

Bortell hopes Friday’s hearing could bring about change.

“If this doesn’t go the way we want it to … it’s not only going to leave me, but millions of Americans, with uncertainty,” she said.

“We just want to be treated like normal people,” she added, “and we shouldn’t be discriminated against because of the medicine that we have to take to be healthy and have a quality of life.”

Along with Bortell and Washington, other plaintiffs in the case include Iraq War veteran Jose Belen, 9-year-old MED patient Jagger Cotte, and the Cannabis Cultural Association, which advocates for reform.

“There is so much at stake here right now,” Hiller, their attorney, said. “The thought of the U.S. Supreme Court denying jurisdiction and not accepting the case, it would be very disappointing to say the least.”

Courting reform

Although some have suggested that federal legalization is a matter for Congress and not the court system, Hiller strongly disagrees.

He pointed to many of the landmark civil rights decisions handed down by the Supreme Court. This case is no different, he said.

“It’s paramount that the Supreme Court take a very directed role here, to make sure that it’s protecting the rights of people,” he said, noting that there are more than 3M U.S. MED patients.

Among the arguments Hiller has raised are the disconnect between citizens and the Controlled Substances Act, which states cannabis has no medical benefits. Hiller noted that 38 states and territories that have legalized some form of cannabis, and that polls have shown 94% approval among American voters for MED programs.

Additionally, Hiller pointed out that many colleges and doctors are leading courses on cannabis. But people are simultaneously being arrested, losing jobs and being kicked out of schools for it. A federal cannabis conviction carries a five-year minimum sentence.

“We need resolution,” Hiller said, referring to the hodgepodge of laws that make up the current landscape. “And the Supreme Court is the place where that resolution must take place.”

Only around 3% of Supreme Court petitions for a Writ of Certiorari, which is what the plaintiffs seek, are granted.

“This is a decision that’s going to come down to the justices of the U.S. Supreme Court, and we just have to put our faith in the system that they’re going to come to a decision that is fair and just,” he said.

High-schooler Bortell said it should be an easy choice for the justices.

“We’re all hoping that the Supreme Court will be able to look at this, because it’s really important,” she said. “It’s going to affect millions of Americans today, so I don’t see why they shouldn’t.”

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