Medicinal marijuana and palliative care: carving a liberty interest out of the Glucksberg framework.

• Author: Hyatt, Adam

INTRODUCTION

On August 15, 2002, Butte County deputy sheriffs and federal agents from the Drug Enforcement Administration ("DEA") arrived at Diane Monson's house with a search warrant and discovered six cannabis plants. (1) The deputies determined that Monson was a licensed user of medicinal marijuana, and thus her use of the cannabis plants was lawful pursuant to California's Compassionate Use Act of 1996, (2) which protects from criminal prosecution "patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician." (3) Following a three-hour standoff, however, the DEA agents seized and destroyed Monson's cannabis plants. (4)

The DEA's seizure was problematic for Monson because she suffers from a degenerative disease of the spine, which causes her "severe, chronic back pain and constant painful muscle spasms." (5) The intensity of her pain is such that she is unable to work or sit down, and thus she is limited to lying down. (6) Under the care of a Board-certified physician, Monson has tried an array of prescription drugs, including muscle relaxants and anti-inflammatories, but each has been ineffective as a painkiller or has produced extreme side effects. (7) Medicinal marijuana, on the other hand, significantly alleviates Monson's pain and eradicates her muscle spasms almost entirely. (8) Accordingly, her physician has concluded that medical marijuana is the sine qua non of a successful treatment of her pain and suffering. (9)

Angel Raich is also afflicted with serious medical problems and uses marijuana for medical purposes pursuant to the recommendation of her physician. (10) Prior to the DEA's raid of Monson's home, Raich had enjoyed protection regarding her use of medicinal marijuana under the Compassionate Use Act. (11) Raich's ailments are both life-threatening and painful. (12) In 1996, she became paralyzed and was restricted to a wheelchair. (13) Raich's physician had attempted to treat her with an array of medications, but all proved to be ineffective or caused extreme and "unacceptable" side effects. (14) When her physician told her that conventional medicine would not help, Raich attempted suicide. (15) Subsequently, her physician recommended that she use medicinal marijuana, which significantly improved her medical condition and enabled her to be more active. (16) Accordingly, her physician concluded that there is no legal alternative to medical marijuana, and that without it her body would deteriorate, hastening her death. (17)

Subsequent to the DEA's seizure of Monson's cannabis plants, Monson and Raich brought suit against the United States Attorney General (18) and the DEA, seeking to enjoin the federal government from enforcing the Controlled Substances Act ("CSA"), (19) which makes it unlawful to manufacture, distribute, dispense, or possess marijuana, and does not recognize an exception for medical use. (20) In their complaint, Monson and Raich argued that the CSA, as applied to them, violated the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth Amendment, the Tenth Amendment, and the doctrine of medical necessity. (21)

The United States District Court for the Northern District of California disagreed and denied plaintiffs' motion for a preliminary injunction. The court found that the government's interest (22) "wane[d] in comparison with the public interests enumerated by plaintiffs and by the harm that they would suffer if denied medical marijuana," (23) but nonetheless concluded that plaintiffs were not entitled to legal relief because they failed to establish a likelihood of success on the merits. (24)

On appeal, a divided Ninth Circuit panel reversed and ordered the district court to enter the preliminary injunction. (25) The court held that plaintiff-appellants had demonstrated a likelihood of success based on their Commerce Clause argument. (26) The court also found that Monson and Raich would endure "significant hardship[s]" (27) if denied the injunction and that the government's interests were "weak in comparison to the real medical emergency facing" plaintiffs, (28) but did not reach the substantive due process claim or the medical necessity defense.

In Gonzales v. Raich, (29) which largely dealt with the issue of federalism, the Supreme Court vacated the Ninth Circuit's judgment and held that the CSA was not an unconstitutional exercise of the Commerce Clause as applied to the plaintiff-respondents. (30) Because the Ninth Circuit did not reach respondents' substantive due process claim or medical necessity defense, the Court remanded the case to determine whether Monson and Raich could succeed on these other avenues for judicial relief. (31)

This Comment will focus only on the substantive due process claim available to the plaintiffs on remand. (32) More specifically, this Comment will assess whether there is a right to palliative care. In Washington v. Glucksberg, (33) which dealt with the right to assisted suicide, five Justices (34) suggested that there may be a liberty interest in avoiding or mitigating pain--even if it hastens death. Accordingly, the facts of Raich fit squarely within the fundamental liberty interest question addressed in Glucksberg, albeit with an additional hurdle over a statute illegalizing marijuana that is backed by significant policy concerns.

A recent Harvard Law Review note (35) argued that "a law completely banning the use of marijuana will, as applied to some patients, infringe upon an array of fundamental rights, and that substantive due process obliges" the courts to apply strict scrutiny to such a law. (36) The note does not, however, assert that there is indeed a right to use last-resort medical marijuana, but rather examines the burdens that the absolute anti-marijuana law has on "an array of fundamental rights rooted in both the traditional (37) and the autonomy (38) theories of substantive due process." (39) It goes only so far as to say that such a law "make[s] it substantially more difficult to pursue these broader values by making it completely impossible for patients to exercise their narrower fundamental rights," and ends the analysis at the strict scrutiny stage. (40)

This Comment goes a step further by arguing that, in view of the Court's precedents, there is a right, subject to limitations, to use last-resort medical marijuana. Part I examines substantive due process generally, as well as the precedent relating to medical decision-making. This Part primarily focuses on locating the right to palliative care, which was contemplated in Glucksberg, and discusses how medicinal marijuana fits within that right. Part II argues that there is indeed a fundamental right to palliative care and assesses whether an absolute anti-marijuana law burdens this right to the extent that the law is unconstitutional as applied to other cases. By analyzing a range of different factual scenarios, this Part constructs a framework to test the point at which the fundamental right is limited by strict scrutiny balancing. Part II concludes by considering the future of the medical decision-making spectrum of liberty interests articulated in Glucksberg.

1. MEDICINAL MARIJUANA & THE ROAD TO PALLIATIVE CARE AS A FUNDAMENTAL RIGHT

   This Part works through the doctrine of substantive due process in the context of medical decision-making. In particular, this Part reconstructs the framework established in Glucksberg and suggests that the Court in Raich is headed in a direction as to preserve a fundamental right to palliative care that protects use of medicinal marijuana.

   1. Modern Substantive Due Process Jurisprudence

      Modern substantive due process precedent "forbids the government to infringe upon certain 'fundamental' liberty interests [protected by Fourteenth Amendment] at all ... unless the infringement is narrowly tailored to serve a compelling state interest." (41) The Supreme Court has been cautious, however, when confronted with an opportunity to "expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended." (42) Accordingly, to "break new ground" (43) within the doctrine, the Court has required the claimed liberty to be fundamental. (44)

      The traditional approach, (45) articulated in Glucksberg, characterizes a right as fundamental when it is "deeply rooted in this Nation's history and tradition ... and ... implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." (46) Furthermore, "a careful description of the asserted right or liberty" is necessary. (47)

      Recently, in Lawrence v. Texas, (48) the Court recognized a second vehicle for finding fundamental rights. This approach is premised on the notion of autonomy (49) and "emphasizes self-definition as the core of constitutionally protected liberty." (50)

      Although both approaches are plausible, this Comment suggests that the right to palliative care fits within the Glucksberg paradigm. At the same time, however, because medical decision-making is inherently related to individual choice, discussion of personal autonomy is inevitable.

   2. Medical Decision-Making & the Right to Refuse Treatment

      The Supreme Court considered the notion of fundamental rights in the medical decision-making context as early as the turn of the twentieth century when it decided Jacobson v. Commonwealth of Massachusetts. (51) In Jacobson, a criminal defendant argued that a state statute infringed upon his liberty by subjecting him to punishment for refusing to submit to a compulsory vaccination. (52) The Court rejected the defendant's assertion and upheld the statute because the state legislature passed it as a public safety measure de signed to stop the spread of disease. (53) The Court concluded that the Constitution "does not import an absolute right in each person to be ... wholly freed from...