Patients have no constitutional rights to medical marijuana, state court rules

State restrictions on medical marijuana access and sales do not violate patients’ rights to pursue health care under the state constitution, the Montana Supreme Court has ruled. The decision overturns a lower court opinion that had blocked new regulations on the state’s voter-approved medical marijuana law.

The restrictions limit medical marijuana dispensers to three patients each and prevent them from making a profit. The limitations essentially gut the original law and make it difficult for patients to obtain medical cannabis, said Elizabeth Pincolini, a board member of the Montana Cannabis Industry Assn., a plaintiff in the lawsuit.

The rewrite of the original statute “was designed to make it as hard and painful as possible to participate in this program,” she said. “It’s bad news for patients. Everyone has to grow their own [cannabis] or find a provider to provide medicine for free.”

The Montana Dept. of Justice, which defended the state, said it was satisfied with the court’s decision. “We are pleased that the Supreme Court has clarified the constitutional issues, and we will continue to defend the law passed by the 2011 Legislature in further proceedings,” said Judy Beck, a department spokeswoman.

In 2004, Montana voters approved the use of medical marijuana through enactment of the Medical Marijuana Act. The law said patients could obtain medical cannabis with a written recommendation from a doctor.

In 2011, the state Legislature passed a bill to repeal the medical marijuana law, but Montana Gov. Brian Schweitzer vetoed the measure. Legislators then enacted the Montana Marijuana Act, which replaced the original law and included new restrictions for the cultivation, distribution and use of medical cannabis.

The Montana Cannabis Industry Assn. and others, including two doctors, asked a district court to block implementation of the new statute. A district court enjoined several portions of the law. The court said some sections of the measure substantially inhibited plaintiffs’ fundamental rights under the state constitution “to pursue employment, to seek one’s own health in all lawful ways and to privacy.” The state appealed to the Montana Supreme Court.

In a Sept. 11 decision, the state’s high court said people have a right to obtain and reject medical treatment. However, this freedom does not include a right to use a preferred drug, regardless of its legality.

“In pursuing health, an individual does not have a fundamental, affirmative right of access to a particular drug,” judges said. “A patient’s selection of a particular treatment, or at least a medication, is within the area of governmental interest in protecting public health, and regulation of that medication does not implicate a fundamental constitutional right.”

The case goes back to the district court, which will make a ruling based on the high court’s opinion.

Medical marijuana challenged elsewhere
The Montana Medical Assn. has not taken a stance on the recent legal challenges against the state’s medical marijuana law, said Jean Branscum, the society’s executive vice president. The association had no comment on the high court ruling.

Montana Medical Assn. policy says evidence suggests marijuana has beneficial effects in the treatment of certain intractable medical conditions. Further evidence also has shown significant risks and side effects related to such use, the policy said. To the extent the law permits use of marijuana for medical indications, marijuana should be used only with proper indications in a safe and effective way, and medical marijuana should be subject to the same regulatory scrutiny as any other psychoactive drug with the potential for abuse, according to the policy.

Montana is one of 16 states that have legalized medical marijuana. Many of the statutes have been subject to legal challenges asserting that state prerequisites for obtaining medical marijuana are too strict.

For example, the Supreme Court of California in August threw out a legal challenge centering on whether cities and counties can regulate medical marijuana dispensaries. An appeals court had ruled that California could not regulate the facilities because marijuana is illegal under federal law. The state high court dismissed the suit, saying the legal arguments were moot.

In March, a district judge declared Nevada’s medical marijuana distribution law unconstitutional. That statute does not provide a reasonable method for patients to obtain medical marijuana lawfully, the court said. The issue is before the Supreme Court of Nevada.

The Montana plaintiffs have not decided whether to ask the state’s high court to rehear the case, Pincolini said. Montana citizens will have a chance to vote on the latest medical marijuana law later this year.

“If people vote no, the law would be off the books and we would go back to the original law,” she said. However, more legislation is needed to improve the initial statute, she said.

via : amednews

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