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Supreme Court Cites Doctors’ Medical Marijuana Free Speech Rights In Abortion Case

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Under a federal circuit court ruling, physicians in the U.S. have generally enjoyed the right to discuss medical marijuana with their patients without fear of being punished by the government. In a ruling on Tuesday, the U.S. Supreme Court affirmed those protections.

Sort of.

In a case concerning a California law that requires clinics that treat pregnant women to provide patients with certain notices concerning the availability of abortion services, the court wrote:

“The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.’ Take medicine, for example. ‘Doctors help patients make deeply personal decisions, and their candor is crucial.’ Throughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities:

“‘For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.’

“Further, when the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.”

(Bolded emphasis added and citations omitted.)

While the First Amendment case at hand, National Institute of Family and Life Advocates v. Becerra, doesn’t directly concern doctor-recommended medical cannabis, the broad thrust of the ruling does uphold free speech rights for physicians. And one legal expert said that the specific mention of marijuana in the court’s opinion should provide some extra assurance to practitioners who focus on the drug’s medical benefits.

“Given the modern politics of marijuana reform, I was not that worried that the Ninth Circuit’s work in Conant v. Walters would be undermined anytime soon,” wrote Douglas Berman, a law professor at Ohio State University, who first spotted the cannabis passage in the new ruling. “But it would not be too hard to imagine Attorney General Jeff Sessions or other state or federal officials resistant to marijuana reform trying to heavily regulate how medical professional can talk to patients about marijuana. This new SCOTUS precedent would seem to limit any such possible efforts.”

That earlier case, Conant. v. Walters, stems from the Clinton administration’s threat, following passage of the first successful state medical cannabis laws, to rescind prescribing licenses from physicians who recommended marijuana to patients. Advocates sued and won an injunction from a district court in 2000, which was affirmed by the Ninth Circuit 2002.

While the Ninth Circuit Court of Appeals ruling technically only applies to the nine states under its jurisdiction, the federal government never appealed the case to the Supreme Court, likely because it suspected it would lose.

Now, in an opinion written by Justice Clarence Thomas, who was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch, the high court has singled out medical marijuana as something that doctors and nurses should be able to disagree with one another about without being punished by the government.

Supreme Court Justice Partied With Marijuana

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Tom Angell is the editor of Marijuana Moment. A 20-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

Politics

New Initiative To Legalize Marijuana Sales Filed In D.C.

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Activists recently filed a new proposed ballot initiative to legalize marijuana sales in Washington, D.C.

The measure—titled the “New Modern Day Cannabis Justice Reform Act”—would end prosecutions of cannabis cultivation, sales and consumption. It would also prevent marijuana from being the basis of police searches and provide for expungements of prior cannabis convictions.

District voters approved a measure to legalize low-level marijuana possession and home cultivation in 2014, but the city has been prevented from implementing a retail model due to a congressional rider barring it from using local tax dollars for such purposes. It stands to reason that the new proposal would run into the same problem, but activists say they plan to push ahead regardless.

Dawn Lee-Carty, executive director of the campaign behind this initiative, told Marijuana Moment in a phone interview that the currently unregulated cannabis system that’s in place has failed to address the problem of racially disproportionate enforcement, with arrests still occurring and putting people at risk of contracting the coronavirus.

“Our goal is to push hard and—if we have to take it to Congress, whatever levels that we have to take—to ensure that it is a different cannabis climate for the safety of the patient, for the economy, for those who run a participate and want to be store owners for cannabis, we should have access just like big moneyed interests have access without being washed out,” she said.

Lee-Carty said that, ideally, the measure would appear on the November ballot this year. It’s fairly late in the process at this point, but the Board of Elections is scheduled to meet to determine whether the initiative meets the standards of relevant subject matter for initiatives on September 2.

To qualify for the ballot, activists would have to collect 24,835 valid signatures from registered voters—just as a separate campaign to decriminalize a wide range of psychedelics successfully did. The marijuana campaign has not started formally gathering signatures, but it did circulate an independent petition that advocates say amassed about 40,000 signatures from individuals who would presumably be inclined to sign the official form.

“This initiative legalizes the possession, to the extent possible by current law the use, sale, and purchase of cannabis and CBD products for any person over the age of 21 or older,” text of the measure states. “Where not possible the initiative will make police enforcement and prosecution the lowest priority. Reverting to law automatically the soonest date possible in the future.”

The proposal also contains several noteworthy provisions such as requiring that, in order to obtain a marijuana business license, individuals must have resided in D.C. for at least two years. Those on parole would also be eligible, the measure states.

“We don’t want outsiders to come in and take over our business. It’s already happened. It’s already here,” Lee-Cary said, referring to the district’s existing medical cannabis program. “You have a lot of out-of-state, people that come in—big money interests that come in—and they sweep up the opportunities that people in our community could have.”

There’s also a ban on vertical integration included in the measure, preventing companies from multiple stages of production and sales so that the local industry would be more diverse and less at risk of monopolization.

Another unique provision would make it so police dogs “previously trained to detect cannabis will be retrained to detect explosives, weapons of mass destruction, and firearms so as to protect our schools, malls, mass gatherings, from foreign and domestic foreign terrorism.”

“Dogs are trained to sniff marijuana, but meanwhile we have bombs, we have school shootings, we have so many other things that are in play right now that I think that we should redirect the funding for dogs—once again removing police and all police-related things, including dogs—out of the cannabis industry or out of the cannabis climate if it’s legal,” Lee-Carty said.

Read the text of the proposed D.C. marijuana sales legalization measure below: 

Dc Marijuana Initiative by Marijuana Moment on Scribd

Where Vice Presidential Candidate Kamala Harris Stands On Marijuana

Photo courtesy of WeedPornDaily.

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USDA Explains Why It’s Denying Hemp Farmers Access To Coronavirus Relief Benefits

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The U.S. Department of Agriculture (USDA) has explained its reasoning for denying hemp growers access to federal coronavirus relief.

In a notice set to be published in the Federal Register on Thursday, the department said it was only providing benefits under the Coronavirus Food Assistance Program (CFAP) for producers of commodities that experienced a five percent price decline between January and April. Their analysis found that hemp did not meet that threshold.

“While the national price did decrease during the first quarter of 2020, it was only a 1 percent decrease, which did not meet the 5 percent or greater decrease in price for CFAP eligibility,” USDA said.

“The national price is represented by the average of 5 regional published hemp biomass benchmark midpoints,” the notice states. “USDA has determined hemp is not eligible for CFAP due to not meeting the 5 percent or greater price decline, nationally.”

USDA first announced that hemp and several other crops would not be eligible for the program in May. While the agency initially maintained it was not even open to reevaluating that decision when it comes to hemp—a determination for only that crop and tobacco—it changed course after Marijuana Moment reported on the blanket exclusion. The department then said that it would at least accept evidence of price declines to reconsider eligibility.

USDA’s latest comments on hemp in the new Federal Register notice are part of a compilation of responses from the department to public feedback requesting aid for a variety of crops that were initially left out of the program.

CFAP is a $19 billion immediate relief program that “includes direct support to agricultural producers.” It was established as part of the first approved COVID-19 package passed by Congress.

Hemp industry advocates have expressed disappointment over USDA’s action, arguing that like any other industry, the hemp market is experiencing unique challenges amid the pandemic and shouldn’t be written off from this program.

They say because hemp is a newly legal crop, it’s more difficult to assess price declines based on traditional benchmarks.

The hemp exclusion by from USDA seemed unusual given that the department has seemingly made a significant effort to demonstrate that it is supportive of the industry and is actively working to ensure that the market has the resources it needs to expand since the crop’s federal legalization in 2018.

In the meantime, USDA is facing pressure from the top Democrat in the Senate and industry stakeholders to delay issuing final regulations for hemp until 2022, citing concerns about the challenges of state compliance that have arisen due to the COVID-19 pandemic.

The minority leader isn’t alone in requesting an extension; state agriculture departments and a major hemp industry group made a similar request to both Congress and USDA this week.

USDA has since approved numerous state, territory and tribal plans—most recently for Maryland and an Indian tribe last week.

Two senators representing Oregon recently expressed concerns that USDA appears positioned to reinstate two particular provisions of its interim final rule that stakeholders view as especially problematic. Those requirements, which the department temporarily suspended enforcement of, mandate that labs that test hemp be registered with the Drug Enforcement Administration and that law enforcement be involved in disposal of the crop if it contains excess THC.

Trump, Asked About Harris’s Marijuana Record, Says ‘She Lied’

Photo courtesy of Brendan Cleak.

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Trump, Asked About Harris’s Marijuana Record, Says ‘She Lied’

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President Trump weighed in on Sen. Kamala Harris’s (D-CA) prior comments on marijuana shortly after she was announced as Joe Biden’s vice presidential running mate on Tuesday.

While the president declined to explicitly discuss the senator’s cannabis policy positions after being pressed by New York Post reporter Steve Nelson, he said “she lied” and “said things that were untrue” when presented with details about an interview she gave last year in which she discussed smoking marijuana in college.

Harris, a former California prosecutor who has been widely criticized by advocates over he role in convicting people over marijuana and past dismissive comments about reform efforts, told The Breakfast Club that during her college days, she consumed cannabis and listened to rappers Tupac and Snoop Dogg. But as some quickly pointed out, the timeline didn’t match, as those artists hadn’t yet released their debut albums while she was in school.

Harris later conceded that she “definitely was not clear about what I was listening to” while consuming cannabis.

Nelson asked the president at a White House press briefing if he felt Harris’s “past on marijuana” is “a liability.”

“Well, she lied. I mean, she said things that were untrue. She is a person that’s told many, many stories that weren’t true,” Trump said before pivoting to criticism about her position on topics like taxes, fracking, military funding and health care.

The reporter followed up to ask whether “supporters of marijuana legalization should vote for you rather than her because she convicted so many people in the past.”

“I can’t tell you what she’s voting for. I don’t think she knows what. I think Joe knows even less than she does,” the president said without directly addressing the question.

It’s somewhat rare for Trump to comment on marijuana issues, but it’s notable that when presented with the opportunity to seize on Harris’s criminal justice record, he declined. It’s especially interesting given that his reelection campaign has been attacking Biden as an “architect” of the drug war who authored punitive laws during his time in the Senate and framing the incumbent president as the criminal justice reform candidate.

A majority of Americans support legalizing marijuana, which makes it all the more curious that neither Trump nor Biden have sought to embrace the issue. Harris, for her part, is now the lead sponsor of a bill to federally legalize cannabis.

In any case, Nelson, the New York Post reporter, has made a habit of pressing Trump on cannabis policy. Last year, he cited studies about reduced opioid overdoses in states with legalization on the books and the president replied that “right now we are allowing states to make that decision” with regard to cannabis policy.

And when the reporter previously asked about Sen. Cory Gardner’s (R-CO) legislation to allow states to set their own marijuana policies, the president voiced tentative support, saying “I really do” favor the proposal.

“I know exactly what he’s doing. We’re looking at it,” he said at the time. “But I probably will end up supporting that, yes.”

Both Trump and Biden are in favor of medical cannabis. And Biden has put forward plans to decriminalize marijuana possession, modestly reschedule the plant and facilitate expungements for prior cannabis convictions.

It remains to be seen whether Harris will push the former vice president to adopt a pro-legalization stance.

Where Vice Presidential Candidate Kamala Harris Stands On Marijuana

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