No. 20-148
`IN THE
`Supreme Court of United States
`
`MARVIN WASHINGTON, ET AL.,
`
`Petitioners,
`
`v.
`WILLIAM PELHAM BARR, ET AL.,
`
`Respondents.
`
`On Petition for a Writ of Certiorari to the United
`States Court of Appeals for the Second Circuit
`
`BRIEF OF AMICUS CURIAE ATHLETES FOR
`CARE, AFTER THE IMPACT FUND, CANNA
`RESEARCH FOUNDATION, NFL SISTERS IN
`SERVICE, INC., AND ISIAH INTERNATIONAL,
`LLC IN SUPPORT OF PETITIONERS
`
`HON. ANTHONY J. MELLACI, JR., J.S.C. (RET.)
` Counsel of Record
`JOSHUA S. BAUCHNER
`RAHOOL PATEL
`ANSELL GRIMM & AARON, P.C.
`1500 Lawrence Avenue
`Ocean, New Jersey 07712
`(732) 922-1000
`ajm@ansellgrimm.com
`
`
`IN THE
`Supreme Court of United States
`
`MARVIN WASHINGTON, ET AL.,
`
`Petitioners,
`
`v.
`WILLIAM PELHAM BARR, ET AL.,
`
`Respondents.
`
`On Petition for a Writ of Certiorari to the United
`States Court of Appeals for the Second Circuit
`
`BRIEF OF AMICUS CURIAE ATHLETES FOR
`CARE, AFTER THE IMPACT FUND, CANNA
`RESEARCH FOUNDATION, NFL SISTERS IN
`SERVICE, INC., AND ISIAH INTERNATIONAL,
`LLC IN SUPPORT OF PETITIONERS
`
`HON. ANTHONY J. MELLACI, JR., J.S.C. (RET.)
` Counsel of Record
`JOSHUA S. BAUCHNER
`RAHOOL PATEL
`ANSELL GRIMM & AARON, P.C.
`1500 Lawrence Avenue
`Ocean, New Jersey 07712
`(732) 922-1000
`ajm@ansellgrimm.com
`
`
`
`
`
`
`
`
` i
`
`
`
`TABLE OF CONTENTS
`TABLE OF CITED AUTHORITIES .......................... ii
`STATEMENT OF IDENTITY AND
`INTEREST OF AMICUS CURIAE ............................ 1
`SUMMARY OF ARGUMENT ..................................... 3
`REASONS FOR GRANTING THE PETITION ......... 5
`A. THE FEDERAL GOVERNMENT’S
`ARBITRARY AND IRRATIONAL
`CLASSIFICATION OF CANNABIS AS A
`SCHEDULE I DRUG HAS PREVENTED
`CURRENT AND FORMER PROFESSIONAL
`ATHLETES FROM ACCESSING MEDICAL
`CANNABIS TO TREAT SEVERE,
`DEBILITATING, AND LIFE-THREATENING
`CONDITIONS IN VIOLATION OF THE
`DUE PROCESS CLAUSE OF THE FIFTH
`AMENDMENT ................................................. 5
`B. THE FEDERAL GOVERNMENT’S
`APPROVAL AND DESCHEDULING OF
`EPIDIOLEX DEMONSTRATES THAT
`CANNABIS HAS AN ACCEPTED
`MEDICAL USE .............................................. 16
`CONCLUSION .......................................................... 19
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`ii
`
`TABLE OF CITED AUTHORITIES
`
` Page(s)
`
`Cases
`Andrews v. Ballard,
`498 F. Supp. 1038 (S.D. Tex. 1980) ................... 8, 9
`Armstrong v. State,
`989 P.2d 364 (Mont. 1999) ............................. 15, 16
`Carey v. Population Servs. Int’l,
`431 U.S. 678 (1977) ................................................ 8
`Cruzan v. Dir., Mo. Dep’t of Health,
`497 U.S. 261 (1990) ................................................ 9
`Griswold v. Connecticut,
`381 U.S. 479 (1965) (Goldberg, J.,
`concurring) ............................................................. 8
`June Med. Servs. L.L.C. v. Russo,
`___ U.S. ___, 140 S. Ct. 2103 (2020) ...................... 8
`
`N.O.R.M.L. v. Drug Enforcement
`Administration,
`559 F.2d 735 (D.C. Cir. 1977) ................................ 6
`
`Planned Parenthood of Southeastern Pa. v.
`Casey,
`505 U.S. 833 (1992) ................................................ 8
`Roe v. Wade,
`410 U.S. 113 (1973) ................................................ 8
`
`
`
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`iii
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`Stenberg v. Carhart,
`530 U.S. 914 (2000) ................................................ 8
`Whole Woman’s Health v. Hellerstedt,
`___, U.S. ___, 136 S. Ct. 2292 (2016) ..................... 8
`
`Statutes
`U.S. Const., Amend. V ................................................. 7
`21 U.S.C. § 801 ............................................................ 4
`21 U.S.C. § 811(d) ........................................................ 6
`21 U.S.C. § 812 .................................................. passim
`21 U.S.C. § 812(b)(1) ............................................. 5, 17
`21 U.S.C. § 812(e) ........................................................ 6
`
`Other Authorities
`
`Denial of Petition to Initiate Proceedings to
`Reschedule Marijuana, 81 Fed. Reg.
`53687, 53687-89 (Aug. 12, 2016) ........................... 6
`Liberty of Subject, 28 Edw. 3 (1354) ........................... 7
`Food and Drug Administration, FDA
`Approves First Drug Comprised of an
`Active Ingredient Derived from
`Marijuana to Treat Rare, Severe Forms
`of Epilepsy (June 25, 2018) .................................. 16
`
`
`
`
`
`
`
`
`iv
`
`Food and Drug Administration, FDA
`Approves New Indication for Drug
`Containing an Active Ingredient Derived
`from Cannabis to Treat Seizures in Rare
`Genetic Disease (July 31, 2020) ........................... 17
`United Nations Single Convention on
`Narcotic Drugs (1961) ............................................ 6
`The Text of Magna Carta, Internet History
`Sourcebooks Project, Fordham
`University (1995) ................................................... 7
`
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` 1
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`STATEMENT OF IDENTITY AND
`INTEREST OF AMICUS CURIAE1
`Athletes for CARE (“AFC”) is a non-profit
`organization founded by former professional athletes
`who are united in using their influence to advocate for
`research, education, and compassion in addressing
`vital health issues for the next generation of athletes,
`including the availability of medical cannabis.2
`After The Impact Fund (“ATI”) is a non-profit
`organization that helps military veterans and retired
`professional athletes receive customized treatment for
`unseen traumatic injuries from the field, including
`anxiety, depression, post-traumatic stress disorder,
`addition, and thoughts of suicide.3
`
`
`1
`Pursuant to Supreme Court Rule 37.6, no counsel for a
`party authored this brief in whole or in part, and no such counsel
`or party made a monetary contribution intended to fund the
`preparation or submission of this brief. No person other than the
`amicus curiae, or its counsel, made a monetary contribution
`intended to fund its preparation or submission. All parties were
`provided proper notice and have consented to the filing of this
`amicus brief.
`2
`The Board of Directors of AFC consists of Scott Berman,
`Eben Britton (former NFL player), Riley Cote (former NHL
`player), Marques Harris (former NFL player), Leah Heise, Bob
`Hoban, Nate Jackson (former NFL player), Gary Kaminsky,
`Ryan Kingsbury, Chris Leavy, Frank Manganella, Derrick
`Morgan (former NFL player), Matthew Nordgren (former NFL
`player), Emily Paxhia, and Lindy Snider.
`3
`The Board of Directors of ATI consists of Matt Birk
`(former NFL player), Matt Davis, Dr. Jason Cormier, Branden
`Minuth (former Navy SEAL), Shannon Shryne, Jamie Baker
`(former NHL player), and Kevin Lee.
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`Canna Research Foundation (“CRF”) is a non-
`profit organization focused on comprehensive and
`evidence-based epidemiological research of medical
`cannabis with the ultimate goal of providing better
`pain relief and improved quality of life for patients in
`need.4
`NFL Sisters in Service, Inc. (“the Sisters”) is a
`non-profit organization comprised of the spouses,
`daughters, and mothers of current and former NFL
`players who advocate on behalf of those players and
`their families. In particular, the Sisters have assisted
`dozens of players and their loved ones with disability-
`related issues arising from their time in the NFL,
`including but not limited to chronic traumatic
`encephalopathy (“CTE”) and amyotrophic lateral
`sclerosis (“ALS”).5
`ISIAH International, LLC (“ITI”) is a holding
`company founded and wholly owned by former Detroit
`Pistons NBA Hall of Famer Isiah Thomas that has
`interests in various companies, including two in the
`medical cannabis and hemp industries.
`AFC, ATI, CRF, the Sisters, and ITI (together,
`“Amici”) all have a strong interest in advocating for
`the legalization and decriminalization of cannabis for
`medical use because many of their members and
`others similarly situated have depended on medical
`cannabis to treat various conditions and provide pain
`
`4
`The Board of Directors of CRF consists of Dr. Joanna
`Zeiger (former professional triathlete), Dr. Robert S. Zeiger, Dr.
`William S. Silvers, and Will Murray.
`5
`The Board of Directors of the Sisters consists of
`Stephanie Anderson, Karyn Williams, Tierra Royal, Shahida
`Walker, and Sabrina Pegross.
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`management when other prescription medications or
`treatment methods have been unsuccessful or
`resulted in unbearable side effects.
` In some
`situations, medical cannabis has even saved the lives
`of athletes affiliated with Amici.
`Government’s
`Moreover,
`the
`Federal
`prohibition of cannabis for medical use has forced
`professional sporting leagues to impose their own,
`often draconian, drug policies. As a result, a large
`number of former professional athletes suffered, and
`many more currently suffer, in silence and, in several
`instances, had their careers shortened because they
`were unable to access medical cannabis.
`Accordingly, Amici submit this brief in support
`of granting the petition for a writ of certiorari
`currently pending before the Court.
`
`SUMMARY OF ARGUMENT
`More than three million people in the United
`States require medical cannabis on a regular basis to
`manage chronic conditions, reduce debilitating pain,
`and—in some instances—to survive from one day to
`the next. For these individuals, this case presents an
`issue of the utmost importance.
`During the past two decades, a majority of
`States and territories and numerous countries
`worldwide have legalized the use of cannabis for
`medical reasons. At the same time, the ever-growing
`body of scientific literature both in this country and
`across
`the
`globe
`clearly
`and
`indisputably
`demonstrates that medical cannabis is both effective
`and safe for many patients where alternative
`treatment options are either futile, intolerable, or
`
`
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`this
` Notwithstanding
`simply non-existent.
`the Federal Government
`indisputable
`reality,
`continues its decades-long crusade against medical
`cannabis and refuses to change the classification of
`cannabis from a Schedule I drug under the Controlled
`Substances Act (“CSA”), 21 U.S.C. § 801 et seq.
`Amici urge the Court to grant the petition for a
`writ of certiorari because the Federal Government’s
`unyielding and tainted approach to medical cannabis,
`combined with the Second Circuit’s refusal to
`adjudicate the Petitioners’ constitutional claims on
`the merits
`for allegedly
`failing
`to exhaust
`administrative remedies that have proven to be futile,
`leaves patients with an untenable choice: face federal
`prosecution for using medical cannabis in accordance
`with State, territorial, and local laws and the advice
`of
`their physicians, or
`risk
`serious health
`consequences, up to and including death.
`The status quo is simply unacceptable and
`cannot be allowed to continue any longer.
`
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`REASONS FOR GRANTING THE PETITION
`FEDERAL
`GOVERNMENT’S
`A. THE
`ARBITRARY
`AND
`IRRATIONAL
`CLASSIFICATION OF CANNABIS AS A
`SCHEDULE I DRUG HAS PREVENTED
`CURRENT
`AND
`FORMER
`PROFESSIONAL ATHLETES
`FROM
`ACCESSING MEDICAL CANNABIS TO
`TREAT SEVERE, DEBILITATING, AND
`LIFE-THREATENING CONDITIONS IN
`VIOLATION OF THE DUE PROCESS
`CLAUSE OF THE FIFTH AMENDMENT
`In October 1970, as part of its “war on drugs,”
`Congress passed, and the President signed, the CSA
`into law; which went into effect on May 1, 1971. The
`CSA established
`five schedules of controlled
`substances, ranging from I to V. 21 U.S.C. § 812.
`Schedule I is the most stringent providing that drugs
`in this category only may be used in limited research
`settings.
` Licensed medical professionals are
`prohibited from prescribing a Schedule I drug to
`patients in any and all circumstances.
`Before a drug may be placed in Schedule I, the
`Federal Government must -- on the basis of science
`and evidence -- determine that the drug (1) “has a high
`potential for abuse[,]” (2) “has no currently accepted
`medical use in treatment in the United States[,]” and
`(3) “[t]here is a lack of accepted safety for use of the
`drug . . . under medical supervision.” 21 U.S.C.
`§ 812(b)(1). The CSA expressly provides that “unless
`specifically excepted or unless listed in another
`schedule, any material, compound, mixture, or
`preparation, which contains any quantity of . . .
`[m]arihuana . . . [or] [t]etrahydrocannabinols, except
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`for tetrahydrocannabinols in hemp” must be placed in
`Schedule I. 21 U.S.C. § 812(c)(10) and (17).6
`Although there have been numerous petitions
`submitted over the years to change the scheduling of
`cannabis, none have succeeded.
` The Drug
`Enforcement Administration (“DEA”) has either
`declined to docket the petitions for rescheduling or
`denied the petitions on the merits after years, and
`sometimes more than a decade, of delay.7 Further
`complicating matters is that the D.C. Circuit, to which
`all appeals from the DEA flow, has held the United
`States would not be compliant with its international
`treaty obligations under the 1961 Single Convention
`on Narcotic Drugs (“Single Convention”) if cannabis
`“were placed in . . . Schedule III, IV or V.” N.O.R.M.L.
`v. Drug Enforcement Administration, 559 F.2d 735,
`751 (D.C. Cir. 1977).8 To that end, the D.C. Circuit
`has observed that keeping cannabis in Schedule I or
`moving it to Schedule II (at best) was “necessary as
`well as sufficient to satisfy our
`international
`obligations.” Id.
`
`
`6
`By contrast, some of the most common performing-
`enhancing substances, such as anabolic steroids, are placed in
`Schedule III. 21 U.S.C. § 812(e).
`7
`See, e.g., Drug Enforcement Administration, Denial of
`Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed.
`Reg. 53687, 53687-89 (Aug. 12, 2016).
`8
`See also 21 U.S.C. § 811(d) (establishing procedures for
`Attorney General, upon recommendation of and/or consultation
`with Secretary of Health and Human Services, to schedule drugs
`in order to comply with international obligations under the
`Single Convention or
`the Convention on Psychotropic
`Substances).
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`The continued failure of the DEA to take
`appropriate action to reschedule cannabis, and of
`Congress to mandate that the DEA do so by statute,
`has for decades deprived countless Americans of
`access to life-changing, and often life-saving, medical
`cannabis in violation of their constitutional rights.
`The Fifth Amendment of the United States
`Constitution provides, in pertinent part: “No person
`shall be . . . deprived of life, liberty, or property,
`without due process of law[.]” The due process clause,
`along with other important provisions of the Bill of
`Rights, are based on the English common law dating
`back to June 15, 1215, when the then-monarch, King
`John, was forced to sign the Magna Carta by
`rebellious barons.9 The following century, the phrase
`“due process of law” first appeared in an Act of the
`English Parliament in 1354.10
`This Court has long recognized the Due Process
`Clause of the Fifth Amendment imbues individuals
`with broad protections. For instance, this Court has
`consistently
`held
`that
`abortion
`laws
`are
`
`9
`The modern English translation of Clause 39 reads as
`follows: “No free man shall be seized or imprisoned, or stripped
`of his rights or possessions, or outlawed or exiled, or deprived of
`his standing in any other way, nor will we proceed with force
`against him, or send others to do so, except by the lawful
`judgement of his equals or by the law of the land.” The Text of
`Magna Carta, Internet History Sourcebooks Project, Fordham
`University
`(1995),
`available
`at
`https://sourcebooks.fordham.edu/source/magnacarta.asp
`(last
`accessed on August 31, 2020).
`10
`Liberty of Subject, 28 Edw. 3 (1354), available at
`https://www.legislation.gov.uk/aep/Edw3/28/3 (last accessed on
`August 31, 2020).
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`unconstitutional if they do not provide an exception
`for when the pregnant woman’s life is at stake.11
`Similarly, the Court has determined that “[i]f the [due
`process clause’s] right of privacy means anything, it is
`the right of the individual . . . to be free of
`unwarranted governmental intrusion in matters so
`fundamentally affecting a person[.]”
` Carey v.
`Population Servs. Int’l, 431 U.S. 678, 686 (1977); see
`also Griswold v. Connecticut, 381 U.S. 479, 487 (1965)
`(Goldberg, J., concurring) (“The Court stated many
`years ago that the Due Process Clause protects those
`liberties that are ‘so rooted in the traditions and
`conscience of our people as to be ranked as
`fundamental.’”) (citing Snyder v. Massachusetts, 291
`U.S. 97, 105 (1934)).
`To that end, the Southern District of Texas, in
`Andrews v. Ballard, while considering a challenge to
`a Texas law only allowing licensed physicians to
`perform acupuncture, aptly observed:
`“[D]ecisions
`relating
`to medical
`treatment . . . are, to an extraordinary
`degree, intrinsically personal. It is the
`individual making the decision, and no
`one else, who lives with the pain and
`disease. It is the individual making the
`decision, and no one else, who must
`undergo or forego the treatment. And it is
`the individual making the decision, and
`no one else, who, if he or she survives,
`
`11
`See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Planned
`Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992);
`Stenberg v. Carhart, 530 U.S. 914 (2000); Whole Woman’s Health
`v. Hellerstedt, ___, U.S. ___, 136 S. Ct. 2292 (2016); June Med.
`Servs. L.L.C. v. Russo, ___ U.S. ___, 140 S. Ct. 2103 (2020).
`
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`must live with the results of that decision.
`One’s health is a uniquely personal
`possession. The decision of how to treat
`that possession is of a no less personal
`nature.”
`498 F. Supp. 1038, 1047 (S.D. Tex. 1980) (emphases
`added).
`This Court also has applied the protections
`afforded by the Due Process Clause to those
`individuals refusing medical treatment. In Cruzan v.
`Dir., Mo. Dep’t of Health, the Court noted that “[i]t
`cannot be disputed that the Due Process Clause
`protects an interest in life as well as an interest in
`refusing life-sustaining medical treatment.” 497 U.S.
`261, 281 (1990); see also id. at 287 (O’Connor, J.,
`concurring) (“[T]he liberty interest in refusing medical
`treatment flows from decisions involving the State’s
`invasions into the body. . . . Because our notions of
`liberty are inextricably entwined with our idea of
`physical freedom and self-determination, the Court
`has often deemed state incursions into the body
`repugnant to the interests protected by the Due
`Process Clause.”).
`It is against this historical backdrop that this
`Court must evaluate the present federal ban on the
`use of cannabis in any and all circumstances. Amici
`contend that the decision to use cannabis for medical
`reasons is no less important than the decision to use
`other prescription drugs, such as opioids and
`contraceptives. It is no less personal than the deeply
`intimate decision to refuse medical treatment for
`ethical or other reasons. And, for those individuals
`who require medical cannabis to have any quality of
`life or to even survive, the Federal Government’s
`
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`10
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`placement of cannabis in Schedule I relegates them to
`a lifetime of misery and risk of death.
`The stories of former and current professional
`athletes -- at the national and international levels --
`who have benefited from medical cannabis are
`numerous. Amici present the stories of a select few to
`demonstrate the important and often lifesaving or
`life-sustaining effect that medical cannabis has had
`upon them. These athletes all lament the fact that
`medical cannabis was not available to them during
`most, if not all, of their professional sporting careers
`(when many of them needed it the most) because of
`the Federal Government’s complete prohibition of
`cannabis, which in turn led to their respective
`sporting associations to adopt and enforce draconian
`drug policies.
`Kaitlyn Verfuerth is a three-time Paralympian
`affiliated with AFC who represented the United
`States at the Athens 2004, Beijing 2008, and Rio 2016
`Olympic Summer Games in wheelchair tennis. Ms.
`Verfuerth won gold medals in both the singles and
`double competitions at the Rio 2007 Parapan
`American Games. She will represent our country
`again as part of Team USA in the Tokyo 2020
`Paralympics, which have been rescheduled to next
`summer because of the ongoing COVID-19 pandemic,
`in the 200 meter kayak and 500 meter canoe events.
`Ms. Verfuerth was in a motor vehicle accident
`at the age of seven which forever changed the course
`of her life. She suffered a spinal cord injury between
`the T11 and L1 vertebrae and the resulting paralysis
`below the impact site has left her unable to walk and
`in need of a wheelchair to this day. Throughout her
`childhood and her Paralympian career, Ms. Verfuerth
`
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`11
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`the use of prescription medications,
`required
`including morphine, oxycodone, and hydrocodone
`among others. At one point, she was on seven
`prescription medications simultaneously.
` These
`drugs did nothing to relieve the phantom pain or
`actual lower back pain she experienced and, in fact,
`caused her to experience unpleasant digestive system
`issues and muscle spasms.
`After the Rio 2016 Paralympics, Ms. Verfuerth
`spoke with her physician and was recommended
`medical cannabis. She notes that “the car accident all
`those years ago changed my life, and medical
`marijuana has changed my
`life again.”
` Ms.
`Verfuerth’s quality of life has markedly improved: her
`whole body has “calmed down,” her headaches have
`disappeared, she experiences far fewer and much less
`intense muscle spasms, and the other serious side
`effects from the regular use of her prescription
`medications are a relic of the past. As a result,
`medical cannabis has allowed Ms. Verfuerth to reduce
`the number of daily prescription drugs she takes from
`seven to one.
`The beneficial effect of medical cannabis on Ms.
`Verfuerth’s life and health cannot be taken lightly or
`dismissed as anecdotal evidence. In fact, if she had to
`choose between competing in the Paralympics and
`using medical cannabis, she would
`forgo her
`professional sporting career.
` Thankfully, Ms.
`Verfuerth recently was able to obtain a therapeutic
`use exemption (TUE) and she will be able to continue
`using medical cannabis while she trains for, and
`eventually competes, at her
`fourth and
`final
`Paralympic games. However, the TUE does not
`protect her from federal prosecution and her inability
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`12
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`to travel with medical marijuana to compete on behalf
`of her country causes great harm to her physical and
`emotional well-being.
`Some athletes were less fortunate and never
`able to obtain a TUE during their professional
`sporting careers. For instance, Darren McCarty, also
`affiliated with AFC, is a former NHL star who played
`for the Detroit Red Wings for the majority of his
`seventeen-year career and won the Stanley Cup four
`times in 1997, 1998, 2002, and 2008. Due to the
`league’s prohibition on medical cannabis, which was
`largely based on the Federal Government’s placement
`of cannabis in Schedule I, Mr. McCarty was forced to
`use various prescription drugs and alcohol to relieve
`pain and make his injuries more bearable.
`In November 2015, Mr. McCarty was informed
`by his physician that he was on the verge of multiple
`organ failure and at high risk of death if he did not
`make significant changes to his lifestyle. After a
`difficult weeklong detoxification program within his
`own home, Mr. McCarty stopped drinking and has
`been sober for nearly five years. He credits medical
`cannabis with saving his life and helping him quit
`drinking. “Without cannabis, I would be dead,” he
`explains. Today, Mr. McCarty no longer needs to take
`any prescription medications and he is as healthy (if
`not healthier) than he was in the prime of his NHL
`career.
`While most professional athletes are not
`scientists and most scientists are not professional
`athletes, sometimes the unexpected happens. Enter
`Dr. Joanna Zeiger, the founder of CRF. She is a
`former professional triathlete who competed between
`1988 and 2010, placing fourth in the Sydney 2000
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`13
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`Summer Olympics, and becoming the 2008 Ironman
`70.3 World Champion. In addition to her professional
`sporting career, Dr. Zeiger graduated with a Bachelor
`of Arts in Psychology from Brown University, and
`earned a Master’s of Science in Genetic Counseling
`from Northwestern University, and a Ph.D. in Genetic
`Epidemiology from Johns Hopkins University’s School
`of Hygiene and Public Health.
`Ironman World
`In 2009, during
`the
`Championship, Dr. Zeiger was involved in a bicycle
`accident. While riding through a designated water
`station during the triathlon, there were volunteers
`standing along the course handing water to passing
`cyclists. One of the volunteers failed to let get go of the
`bottle that Dr. Zeiger was grabbing. Dr. Zeiger flew
`off her bicycle and sustained severe injuries. She
`broke her collarbone, suffered several broken ribs and
`substantial nerve damage that caused a condition
`called intercostal neuralgia.12 For years, Dr. Zeiger
`suffered muscle and diaphragm spasms, appetite loss,
`severe chronic pain, and trouble with sleeping and
`breathing. In total, she had nine surgeries to her
`chest wall.
`Around 2014, when cannabis was legalized
`recreationally in Colorado, Dr. Zeiger tried medical
`cannabis upon the recommendation of her husband.
`Since then, her quality of
`life has
`improved
`significantly. She is able to sleep better, her nausea
`has subsided, her appetite has returned, and she has
`suffered no major side effects. As a scientist, Dr.
`Zeiger was initially skeptical of medical cannabis, but
`
`12
`The intercostal nerves are those that rise from the spinal
`cord below the ribs.
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`14
`
`now strongly supports it in light of the growing body
`of evidence and her own personal experience. She
`notes that “[c]annabis doesn’t take away your pain
`completely, but it lessens your suffering greatly.”
`Thanks to medical cannabis, Dr. Zeiger is able to
`exercise once again and be productive during the day.
`And the list of professional athletes benefiting
`from medical cannabis goes on. Kyle Turley, a former
`NFL player associated with ATI who suffers from
`stage 2 progressive dementia, went from twelve
`prescriptions daily to none with the help of medical
`cannabis. His vertigo and light sensitivity have
`disappeared altogether. He believes that his sporting
`career would have lasted longer and he would have
`had fewer health issues in retirement if medical
`cannabis had been available to him and other players
`during his career.
`The Sisters observe that, in addition to CTE,
`ALS, and dementia, many former NFL players suffer
`from insomnia, severe and recurring pain, memory
`loss, paranoia, hallucinations, seizures, chronic
`headaches, and depression. They contend that
`players were often required to take addiction-forming
`opioids so that they could return to the playing field
`instead of safer alternatives with fewer side effects,
`such as medical cannabis. In some instances, players
`who suffered seizures were not allowed to use medical
`cannabis even though their personal physicians
`recommended its use to alleviate their conditions.
`These testimonials serve as proof that medical
`cannabis has undoubtedly helped, and in some cases
`saved, the lives of the professional athletes who have
`made the decision to use it with the advice of their
`physicians. And, medical cannabis continues to
`
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`
`
`15
`
`improve their quality of life and help them survive.
`Alone, this anecdotal evidence is highly persuasive.
`When combined with the ever-expanding body of
`scientific research and the fact that more than three
`million Americans (more than the populations of
`Guam, Wyoming, Vermont, Alaska, and North Dakota
`combined) use cannabis for health reasons, Amici
`contend that cannabis’s continued designation as a
`Schedule I drug by the Federal Government is
`entirely arbitrary and irrational.
`The wise words of the Supreme Court of
`Montana are particularly relevant here:
`Certainly, this right of choice in making
`personal health care decisions and in
`exercising personal autonomy is not
`without limits. In narrowly defined
`instances the state, by clear and
`convincing evidence, may demonstrate a
`compelling interest in and obligation to
`legislate or regulate to preserve the
`safety, health[,] and welfare of a
`particular class of patients or the general
`public from a medically-acknowledged,
`bonafide [sic] health risk. Subject to this
`narrow qualification, however,
`the
`legislature has neither a legitimate
`presence nor voice in the patient/health
`care provider relationship superior to the
`patient’s right of personal autonomy
`which protects that relationship from
`infringement by the state.
`Worse, when, as in the case at bar, the
`legislature
`thrusts
`itself
`into
`this
`protected zone of individual privacy
`
`
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`16
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`under the guise of protecting the patient’s
`health, but, in reality, does so because of
`prevailing political ideology and the
`unrelenting pressure from individuals
`and organizations promoting their own
`beliefs and values, then the state’s
`infringement of personal autonomy is not
`only constitutionally impermissible, it is,
`as well,
`intellectually and morally
`indefensible.
`Armstrong v. State, 989 P.2d 364, 380 (Mont. 1999)
`(second emphasis added). These observations apply
`with equal force today.
`This Court has generally been a zealous
`defender of individual rights over our Nation’s
`history. It should continue to follow that fine tradition
`and grant the petition for a writ of certiorari.
`
`GOVERNMENT’S
`FEDERAL
`B. THE
`APPROVAL AND DESCHEDULING OF
`EPIDIOLEX DEMONSTRATES THAT
`CANNABIS HAS
`AN
`ACCEPTED
`MEDICAL USE
`the Federal
`To make matters worse,
`Government is talking out of both sides of its mouth.
`In June 2018,
`the Food and Drug
`Administration (“FDA”) approved Epidiolex for the
`treatment of two rare epilepsy conditions -- Lennox-
`Gastaut syndrome and Dravet syndrome -- in children
`2 years of age and older.13 Epidiolex is a cannabidiol
`
`13
`Food and Drug Administration, FDA Approves First
`Drug Comprised of an Active Ingredient Derived from Marijuana
`
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`17
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`solution derived from the Cannabis sativa L. plant
`and currently placed in Schedule V, the least
`restrictive controlled category under the CSA. In
`April 2020, Epidiolex was descheduled altogether and
`no longer subject to the CSA’s requirements. And, on
`July 31, 2020, the FDA expanded its approval for
`Epidiolex to treatment of tuberous sclerosis complex
`in patients one year of age and older.14
`This hypocrisy stands in stark contrast to the
`Federal Government’s continued placement of
`cannabis generally in Schedule I. It defies logic and
`common sense that cannabis must remain in Schedule
`I, which requires a finding that it has “no currently
`accepted medical use in treatment in the United
`States[,]”15 but Epidiolex, which is made from the
`same plant and contains the same active ingredient,
`has been approved for use in children and has been
`descheduled altogether.
`Amici contend that the FDA’s approval of
`Epidiolex
`fatally
`undermines
`the
`Federal
`Government’s arguments for maintaining cannabis in
`
`to Treat Rare, Severe Forms of Epilepsy (June 25, 2018), available
`at https://www.fda.gov/news-events/press-announcements/fda-
`approves-first-drug-comprised-active-ingredient-derived-
`marijuana-treat-rare-severe-forms (last accessed on August 31,
`2020).
`Food and Drug Administration, FDA Approves New
`14
`Indication for Drug Containing an Active Ingredient Derived
`from Cannabis to Treat Seizures in Rare Genetic Disease (July
`31, 2020), available at https://www.fda.gov/news-events/press-
`announcements/fda-approves-new-indication-drug-containing-
`active-ingredient-derived-cannabis-treat-seizures-rare
`(last
`accessed on August 31, 2020).
`15
`21 U.S.C. § 812(b)(1).
`
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`18
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`Schedule I. As the Federal Government now admits
`that cannabis has a “currently accepted medical use
`in treatment in the United States[,]” it must be
`removed from Schedule I. But instead of recognizing
`its hypocrisy, the Federal Government insists on
`denying millions of Americans who rely on medical
`cannabis the right to secure their bodies against harm
`by insisting that proponents of change file yet another
`formal descheduling petition with the DEA and wait
`for a decision that -- if past performance is any
`indicator of future action -- will take approximately a
`decade. In the meantime, millions will continue to
`suffer because they live in States or territories that do
`not permit medical cannabis and are forced to make
`significant sacrifices in their daily lives -- from not
`traveling on airplanes, visiting national parks, or
`peti
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