Amicus Curiae Brief — United States v. OAKLAND CANNABIS BUYERS'COOPERATIVE

FEB 20 Yoo| \% | |

No. 00-151 | FEB 20 2081 |

In the Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

V.

OAKLAND CANNABIS BUYERS’ COOPERATIVE

AND JEFFREY JONES,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF EDWARD NEIL BRUNDRIDGE, IMA

CARTER, REBECCA NIKKEL AND LUCIA Y. VIER

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

THOMAS V. LORAN III

Counsel of Record

MARGARET S. SCHROEDER

Pillsbury Winthrop LLP

50 Fremont Street

San Francisco, CA 94105

(415) 983-1000

Counsel for Amici Curiae

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TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE 000... cccccccssscsssssecsececssees l

SUMMARY OF ARGUMENT ooo cccccccccsssescccsseccsee 3

ma Rmenes OP WIT i 5

ARGUMENT 8

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I. The Members Have a Constitutional Right to Be

Free from Governmental Interdiction of Their

Personal, Self-Funded Medical Choices, in

Consultation with Their Personal Physicians, to

Alleviate Their Suffering through the Only

Effective Treatment Available for Them... 8

A. The right to bodily integrity and to be free of

ape REST ATONE Dea I OCT RSE 9

B. The sanctity of the physician-patient

relationship

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Il. The Members’ Fundamental Right Is Different

From The Rights Asserted In Carnohan And

Rutherford, Which Therefore Have No Application

Here 17

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ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Carnohan v. United States, 616 F.2d 1120 (9th Cir.

SID «.ssncssinmnstiaseiiaebbsuasetasnata nee 4,17, 18

Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal.

| | ONE RTEN BUNEERAA IMI PO Ny U8 MOR IME 17

Cruzan v. Director, Mo. Dep’t of Health, 497 U.S.

PO I eiicctiiicitiac tae ae a 9

Estelle v. Gamble, 429 U.S. 97 (1976) ooo... ccccsecssscsessseesseee 10

Griswold v. Connecticut, 381 U.S. 479 | See 15

Hudson v. McMillian, 503 U.S. 1 (1992) ooo ccccccccoccoseeee. 13

Ingraham v. Wright, 430 U.S. 651 2) Sanne 10, 13

Moore v. East Cleveland, 431 U.S. 494 2: 4,8

Palko v. Connecticut, 302 U.S. 319 (1937)... cccccccccccocce-. 8

Planned Parenthood v. Casey, 505 U.S. 833

CPE .cssinineismatesninignaiale anime eaeueme a 3, 15, 37

Rochin v. California, 342 U.S. 165 (1952) oo cccccccecees 10

Roe v. Wade, 410 U.S. 113 (1973) ooo ccc cccccccsssssssseseseeeeeee 15

Rutherford v. United States, 616 F.2d 455 (10th Cir.

ESOT D ~<siscsccpsissivnglaiuhiandiaadae aaa eee 4,17, 19

Schloendorff v. Soc’y of N.Y. Hospital, 105 N.E. 92

Oe NG oct ee 10

Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597

COD nsessosnsnininieicseis eas a li Oe em tara 15

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TABLE OF AUTHORITIES (continued)

Page(s)

United States v. Aguilar, 883 F.2d 662 (9th Cir.

ss ESSE CE ES Mg 2

United States v. X-Citement Video, Inc., 513 U.S. 64

egy MEE OT SS AE RO Rg a TE SE 3

Vacco v. Quill, 521 U.S. 793 (1997) ooo cccccceccoecccc. 14

Washington v. Glucksberg, 521 U.S. 702 (ea). passim

Winston v. Lee, 470 U.S. 753 (1985) ooo ecoccccccceceeeecsecce... 10

Statutes and Codes:

California Health & Safety Code

hips y va abe ea jg. EE EE eS 1, 6, 18

Controlled Substances Act

Title 21, United States Code section 801... pa

Other Authorities:

1 Blackstone, Commentaries (1765) .0000...ooccccccccceeccooeeoses. 10

8 Wigmore on Evidence, § 2380 (rev. ed. 1961)... 17

Amundsen, Medicine, Society, and Faith in the

Ancient and Medieval Worlds I ace 12

Cassell, The Nature of Suffering and the Goals of

Medicine, 306 New England J. Med. 639

og OES SRE GS EIEN TC REE 12

Edwards, Pain and the Ethics of Pain Management,

18 Soc. Sci. Med. 515 (1984) ooo cc cccccccsescseece 12

iV

TABLE OF AUTHORITIES (continued)

Page(s)

Euthanasia: Recent Declarations of Popes and

Bishops, Life Ethics Centre, Christian

Pamphlet No. 3 (Alphonse de Valk, C.S.B.,

se Ng RN I EAL Ie A MT 13

Mill, On Liberty (Penguin Books 1985) (1859)... 9

Mormis, The Culture of Pain (1991) ooo... ..eessesssssessessesseeseees 12

Perry & Cooper, Sources of Our Liberties (1959)... 10

Post, et al., Pain: Ethics, Culture, and Informed

Consent to Relief, 24 J. Law, Med. & Ethics

348 (1996) i, ta

SSCS SO SES ESE S SESE TEESE SESEE TES SEEESESESESEEESSESESEEREEEEES

Rich, A Prescription for the Pain: The Emerging

Standard of Care for Pain Management, 26

Wm. Mitchell L.Rev. 1 (2000) 11

Russell, Freedom to Die: Moral and Legal Aspects

of Euthanasia (Human Sci. Press 1977)

(1975)

Tucker, The Death with Dignity Movement:

Protecting Rights and Expanding Options

After Glucksberg and Quill, 82 Minn. L. Rev.

923 (1998) 14

SOOO SOSHESHEEEEEE SHES SESE SESE EHESESESESOSSEEEESESESEEEESEEEOEEE

Wanzer, et al., The Physician’s Responsibility

Toward Hopelessly Ill Patients: A Second

Look, 320 New England J. Med. 844 (1989) 11

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INTEREST OF AMICI CURIAE

Amici curiae, Edward Neil Brundridge, Ima Carter,

Rebecca Nikkel and Lucia Y. Vier (collectively, the

“Members”), are parties-in-intervention in the underlying

actions from which the writ of certiorari arises.' They are

members of the cannabis cooperatives, including respondent

cooperative, against which the government sought injunctive

relief. The Members intervened below as defendants. They

answered, invoking the common law defense of necessity,

and filed counterclaims-in-intervention seeking a declaration

of their fundamental right to be free from governmental

interdiction of their personal, self-funded medical decisions,

in consultation with their physicians, to alleviate their

suffering through the only effective treatment available to

them: cannabis.

The Members suffer from chronic pain that seriously

diminishes their quality of life. To obtain the only effective

medical treatment available to alleviate their pain and allow

them to function, the Members joined the cooperative

associations that were formed after the passage in California

of the Compassionate Use Act of 1996 (Calif. Health &

Safety Code § 11362.5). The state statute sought to ensure

that seriously ill Californians would have the right to obtain

and use cannabis for medicinal purposes. The cooperatives

are the only available legal source of safe and affordable

cannabis to the Members.

As members of California cannabis cooperatives, the

Members have an interest in the affirmance of the court of

appeals’ decision upholding the availability of the medical

necessity defense in any action by the government to enforce

The parties have consented to the filing of this brief, and

the written consents of each of their counsel of record are filed

with this brief. Counsel for a party did not author this brief in

whole or in part, and no person or entity, other than the amici

curiae or their counsel, made a monetary contribution to the

preparation or submission of the brief.

the Controlled Substances Act (21 U.S.C. § 801 et seq.)

against respondents or themselves. In response to the

government’s enforcement action, the Members intervened

and have invoked the defense of necessity in their answer.

Like respondents, the Members argued below that

distribution of cannabis to members of California

cooperatives under circumstances that meet the common law

standard of necessity articulated in United States v. Aguilar,

883 F.2d 662, 692 (9th Cir. 1989), may not be enjoined

under the Controlled Substances Act. The Members urge the

Court to affirm the court of appeals’ judgment.

Although their constitutional claim is not before the

Court, the Members also have an interest in ensuring that

they have an adequate Opportunity to present that claim

below if necessary.” The question presented by the petition

for certiorari is whether a medical necessity defense is

available to respondents under the Controlled Substances

Act. Should the Court reverse the court of appeals’ ruling

that the defense is available, resolution of this question of

statutory interpretation would not prevent the Members from

presenting their constitutional claim in light of a fully

developed record. See Washington v. Glucksberg, 521 U.S.

702, 720-21 (1997).

To establish their constitutional claim, the Members

intend to present evidence that the fundamental right they

assert is deeply rooted in this Nation’s history and tradition.

In a related appeal, the court of appeals has ordered that the

Members be allowed to do so.?> The government has not

. In this regard, the government has argued in the past and

may argue again below—although it does not do so here—that

respondents do not have standing to assert the Members’

fundamental constitutional right as set forth in their counterclaims

below.

. Pursuant to Federal Rule of Evidence 201, the Members

request that the Court take judicial notice of the court of appeals’

_ decision on May 10, 2000 in appeal nos. 99-15838, 99-15844 and

(footnote continued)

sought review of that ruling and thus the outcome of its

challenge here to the appellate court’s construction of the

Controlled Substances Act cannot avert district court

consideration of the constitutional issue presented by the

Members’ counterclaim.

SUMMARY OF ARGUMENT

The Court is being asked to decide whether a common

law necessity defense is available in a civil enforcement

action under the Controlled Substances Act. This brief

describes the constitutional right to be free from

governmental intervention in their medical treatment that the

Members have asserted in the underlying actions. The

existence of this right is an additional and compelling reason

for this Court to rule that in enacting the Controlled

Substances Act, Congress did not intend to preclude

respondents’ invocation of the necessity defense in this

context.* The Members also ask the Court to ensure that its

disposition of the present appeal not restrict the Members’

ability to present their constitutional claim for a hearing in

the district court on a fully developed record.

The Members’ constitutional claim satisfies ‘the

two-pronged test adopted by the Court in Washington v.

Glucksberg, 521 U.S. at 720-21. The first step focuses on

consideration of the nature of the interests that the Due

Process Clause protects: namely, fundamental rights and

liberties that are “‘deeply rooted in this Nation’s history and

tradition.”” Jd. (quoting Moore v. East Cleveland, 431 U.S.

99-15879, reversing the district court’s dismissal of the Members’

counterclaim.

: Under well-settled rules, Congress is presumed to have

enacted legislation in accordance, rather than in conflict, with

constitutional guarantees (United States v. X-Citement Video, Inc.,

513 U.S. 64, 73 (1994)), and the preferred construction of a

federal statute is therefore one that avoids potential constitutional

infirmity. Jd. at 78.

494, 503 (1977) (plurality opinion)). This brief previews the

types of evidence that the Members intend to offer below if

necessary, to establish the deep and important historical 1gots

for their fundamental right.’ The second step in the

substantive due process inquiry involves a formal

prerequisite: that the asserted fundamental liberty interest be

“careful[ly]” and narrowly described. Jd. at 721. The right

asserted in the Members’ counterclaim satisfies this

requirement. The Members assert the right to be free from

governmental interdiction of their personal, self-funded

medical decision, in consultation with their physicians, to

alleviate their suffering through the only effective treatment

available to them.

Finally, this brief addresses the government’s

argument—relegated to a footnote (Brief for the Petitioner

(“Brf.”) at p. 25, fn. 14) —that-such a fundamental right does

not exist. The government argues that the recognition of

such a right is foreclosed by cases holding that individuals

have no right to require a federal agency to reclassify a drug

(Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980))

or to have a particular type of treatment. Rutherford v.

United States, 616F.2d 455 (10thCir. 1980). The

government’s authorities confirm, however, that the right to

decide whether or not to have effective medical treatment at

all is in fact fundamental. /d. at 457. Moreover, the relief

the Members seek does not require the government to take

any positive action. Instead, the Members ask that the

government “leave them alone” and that they be permitted to

act on their doctors’ recommendations regarding the only

available treatment that has proven effective for them.

“ This brief discusses the Nation’s history and traditions

supporting the right to bodily integrity and to be free from pai

(pp. 9-14 infra) and the sanctity of the ici privilege

(pp. he Nes part of the proof to be adduced in the district

court, the M intend to show the -accepted practice

until the Te por tenes magpie. or See Joint

Appendix, Declaration of Lester Grinspoon, M.D., etc., at 122-125

(detailing history and tradition of therapeutic uses of cannabis).

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associated with it and have no legal alternative to cannabis

for the effective treatment of their condition. Each has tried

other legal alternatives to cannabis but has found that they

are ineffective in treating their condition or result in

intolerable side effects.

The Members’ doctors have determined that cannabis

would be beneficial to their health and have recommended

its use. In each case, the physician’s recommendation

conforms to California’s Compassionate Use Act.

Lucy Vier has been diagnosed with terminal squamous

cell cancer. She has undergone radiation and chemotherapy

treatments, but they have caused her to experience nausea

and made it almost impossible for her to taste food.

Ms. Vier’s doctor accordingly recommended that she use

cannabis to stimulate her appetite. Because of her small

physique (she is approximately four feet eleven inches tall

and weighs eighty-seven pounds), it is crucial that Ms. Vier

maintain her weight. She has found that cannabis is effective

to stimulate her appetite. Without cannabis, Ms. Vier is

unable to eat enough food to maintain her health.

For these reasons, in the opinion of Ms. Vier’s treating

physician (as well as herself), the use of cannabis is a

medical necessity. No known traditional medicines

stimulate her appetite effectively. If she were unable to use

cannabis, she will lose weight rapidly, and her day-to-day

pain will increase. She also believes that without cannabis,

she would not be able to survive as long as her doctor’s

prognosis.

Becky Nikkel has fibromyalgia and multiple sclerosis.

These conditions cause her to experience severe, painful

muscle spasms. She experiences pain on a daily basis, and at

times, it can be continuous. Ms. Nikkel has tried many

conventional treatments and medicines, but they have been

ineffective or caused allergic reactions. For example, upon

the recommendation of her doctor, Ms. Nikkel tried

baclofen, but that caused her legs to become so weak that she

could not walk. Another conventional medication caused a

severe allergic reaction that progressed to anaphylactic shock

and was nearly fatal.

Ms. Nikkel’s doctor recommended cannabis as the only

medicine that effectively and safely alleviates the pain

caused by her muscle spasms. The absence of other medical

alternatives for relief of her pain makes using cannabis a

medical necessity for Ms. Nikkel.

Ed Brundridge suffers from severe arthritis in the right

knee, which causes him extreme pain and inability to walk

unaided by a cane. He also suffers from loss of appetite due

to anxiety and depression. To alleviate pain, Mr. Brundridge

has tried many traditional medicines, such as ibuprofen. All

of them, however, either were ineffective or caused him to

experience an allergic reaction. Moreover, he is unable to

take many traditional pain relievers due to liver damage as a

result of Hepatitis C and peculiar addiction risks he faces as

a recovering alcoholic and drug abuser.

Mr. Brundridge’s doctor recommended cannabis as a

legal medical alternative to relieve his pain caused by the

swelling in his knee and to stimulate his appetite. Cannabis

is the only medicine that he has used that effectively

alleviates the pain of his arthritis and counteracts the dietary

effects of his anxiety and depression. Obviously, aware of

his patient’s background of addiction, Mr. Brundridge’s

doctor recommended cannabis based on his knowledge that

it is not addictive. Without cannabis, Mr. Brundridge

believes he would not be alive today.

Ima Carter has congenital scoliosis, fibromyalgia and

cervical nerve damage. These conditions cause her severe

back and head pain. Ms.Carter has tried numerous

traditional medicines for these conditions, none of which has

been effective. Cannabis is the only drug that she has used

that has dulled or stopped the pain. She was once forced to

go without cannabis temporarily. During that time,

Ms. Carter was completely disabled by pain and unable to

leave her bedroom. She now uses cannabis on the

recommendation of her doctor. Cannabis is the only

effective treatment available to alleviate her pain. If there

were anything Ms. Carter could do to relieve her pain other

than using cannabis, she would do it.

If respondents and the other defendant cooperatives

below are prevented from distributing cannabis to persons

such as the Members, who satisfy the criteria for medical

necessity, these seriously ill individuals will be unable to

obtain cannabis legally or safely. The Members thus would

suffer a special harm to their privacy interests and doctor

relationships as a result of the attempted governmental

intrusion. If the government’s challenge to the modification

of the preliminary injunction is upheld, the Members will be

unable not only to speak freely with their doctors about their

conditions and medical needs, but also to act on their

doctors’ recommendations as to the only medication that

effectively alleviates their pain or stimulates their appetite:

cannabis.

ARGUMENT

I. The Members Have a Constitutional Right to Be

Free from Governmental Interdiction of Their

Personal, Self-Funded Medical Choices, in

Consultation with Their Personal Physicians, to

Alleviate Their Suffering through the Only

Effective Treatment Available for Them.

The Members advocate a narrow substantive due process

right: the right to treat themselves and to be free from pain

by using the only effective medical treatment available to

them pursuant to their physicians’ recommendations. To

achieve a constitutional dimension, a claimed “fundamental”

right must be “implicit in the concept of ordered liberty.”

Palko v. Connecticut, 302 U.S. 319, 325 (1937). The interest

asserted must be, ““deeply rooted in this Nation’s history and

tradition,’ [Moore, 431 U.S. at 503] . . . and ‘implicit in the

concept of ordered liberty,’ such that ‘neither liberty nor

justice would exist if [it] were sacrificed,’ [Palko, 302 U.S.

at 325].” Washington v. Glucksberg, 521 U.S. at 720-21. °

An analysis of the history and tradition of a right “tends to

rein in the subjective elements that are necessarily present in

due-process judicial review.” Jd. at 722. As outlined below,

this Nation’s history and tradition of protecting the

individual’s right to privacy and bodily integrity and of

safeguarding the integrity of the physician-patient

relationship demonstrate that the right claimed by the

Members is “fundamental” within the meaning of the Due

Process Clause.

A. The right to bodily integrity and to be free of

pain.

The Members’ asserted fundamental right has deep roots

in our Nation’s history and legal tradition of permitting

decisions about one’s body to be made free from

governmental intervention. The right articulated by the

Members is concomitant with the established rights to bodily

integrity and to be free of pain.

The right to be free of government intrusion with respect

to one’s body has roots in natural law principles and the

philosophy of individual autonomy. See Mill, On Liberty,

60-69 (Penguin Books 1985) (1859) (concluding that “[o]ver

himself, over his own body and mind, the individual is

sovereign”). United States legal precedent in the past

century has consistently upheld legal protection for this

individual right.’ In fact, the origin of this precedent in the

' In Washington v. Glucksberg, the Court considered

whether the State of Washington’s prohibition against physician-

assisted suicide violated substantive due process guarantees. In

concluding that it did not, the Court reviewed the 700-year history

of suicide and assisted suicide under the Anglo-American common

law tradition. 521 U.S. at 711. In addition, the Court considered

that, “[t]hough deeply rooted, the States’ assisted-suicide bans

ha[d] in recent years been reexamined and, generally, affirmed.”

Id. at 716.

ri See, e.g., Cruzanv. Director, Mo. Dep't of Health,

497 U.S. 261, 281 (1990) (finding that the Due Process Clause

(footnote continued)

10

Anglo-American legal tradition pre-dates our own decisions

by at least two hundred years.'° The legal tradition traces its

ultimate roots at least to the early thirteenth century: under

the 39th Article of the Magna Carta, a citizen could not be

deprived of the right of personal security “except by the legal

judgment of his peers or by the law of the land.” Perry &

Cooper, Sources of Our Liberties, 17 (1959).

The right to be free of pain likewise finds its source in

both legal precedent and important traditions of this Nation.

Outside of the legal context, this right is embedded in the

professional and ethical standards of physicians and other

protects an interest in life as well as an interest in refusing life-

sustaining medical treatment); Winston v. Lee, 470 U.S. 753, 766

(1985) (finding involuntary surgery to remove bullets from

defendant’s shoulder unreasonable invasion of his body);

Ingraham v. Wright, 430 U.S. 651, 673-74 (1977) (“The liberty

preserved from deprivation without due process include[s] . . . a

right to be free from and to obtain judicial relief, for unjustified

intrusions on personal security. . . . [This] encompass[es] freedom

from bodily restraint and punishment”); Estelle v. Gamble,

429 U.S. 97, 103-04 (1976) (stating in the context of prisoners’

rights that “denial of medical care may result in pain and suffering

which no one suggests would serve any penological purpose. .. .

The infliction of such unnecessary suffering is inconsistent with

contemporary standards of decency as manifested in modern

legislation.”); Rochin v. California, 342 U.S. 165, 172 (1952)

(finding an unconstitutional violation of bodily integrity when

police took defendant to hospital and administered an emetic to

recover pill swallowed upon arrest); Schloendorff v. Soc’y of N.Y.

Hospital, 105 N.E. 92, 93 (N.Y. 1914) (stating in a case involving

the patient’s claim that her doctor had removed a tumor without

her consent, that “[e]very human being of adult years and sound

mind has a right to determine what shall be done with his own

body.”).

10

Blackstone recognized a right to personal security “which

consists in a person’s legal and uninterrupted enjoyment of his

life, his limbs, his body, his health, and his reputation.”

1 Blackstone, Commentaries *130 (1765). Blackstone extended

prosecution to the “preservation of a man’s health from such

practices as may prejudice or annoy it.” Jd. at *134.

11

caregivers. Allowing a patient to experience unnecessary

pain and suffering of any form is considered substandard

medical practice, regardless of the nature of the patient’s

condition or the goals of medical intervention.'' Likewise,

physicians have a moral and ethical duty to provide relief

from pain and suffering.'* This standard has in fact been

recognized since the inception of medical ethics in western

2 See, e.g., Rich, A Prescription for the Pain: The

Emerging Standard of Care for Pain Management, 26 Wm.

Mitchell L.Rev. 1, 4 (2000).

. See, e.g., Post et al., Pain: Ethics, Culture, and Informed

Consent to Relief, 24 J. Law, Med. & Ethics 348 (1996) (“[OJne

caregiver mandate remains as constant and compelling as it was

for the earliest shaman — the relief of pain. Even when cure is

impossible, the physician’s duty of care includes palliation.

Moreover, the centrality of this obligation is both unquestioned

and universal, transcending time and cultural boundaries.”);

Wanzer, et al., The Physician’s Responsibility Toward Hopelessly

Ill Patients: A Second Look, 320 New England J. Med. 844

(1989) (concluding that “[t]o allow a patient to experience

unbearable pain or suffering is unethical medical practice. . . . The

physician should follow these principles without exaggerated

concern for legal consequences, doing whatever is necessary to

relieve pain and bring comfort, . . . [and t]o withhold any

necessary measure of pain relief in a hopelessly ill person out of

fear of depressing respiration or of possible legal repercussions is

unjustifiable.”).

12

culture,'* and its underpinnings in contemporary thought

derive from many varied and different sources. '*

" See, e.g., Amundsen, Medicine, Society, and Faith in the

Ancient and Medieval Worlds, 33 (1996) (“The treatise entitled

The Art in the Hippocratic Corpus defines medicine as having

three roles: doing away with the sufferings of the sick, lessening

the violence of their diseases, and refusing to treat those who are

overmastered by their diseases, realizing that in such cases

medicine is powerless”); Cassell, The Nature of Suffering and the

Goals of Medicine, 306 New England J. Med. 639 (1982) (“[T]he

obligation of physicians to relieve human suffering stretches back

into antiquity.”).

- Members of the American Society of Law, Medicine and

Ethics, for example, argue that this standard is based on tenets of

professionalism:

Principled analyses of the doctor-patient

relationship suggest that it is the dual obligation of

physicians to respect and promote the autonomy

of their patients and to protect and enhance their

well-being . . . [which includes] relief of pain and

suffering. . . . . [W]e submit that providing relief

from pain is central to the very notion of healing

and, for that reason alone, it requires no

exceptions or intellectual artifice for its validity.

Post et al., supra, 24 J. Law, Med. & Ethics at 349, 358.

Others, such as the mid-1980s philosopher Rem Edwards,

assert that the medical standard is dictated by ethics: “there is a

broadly based humanistic ethics which applies to the domain of

medical care which gives patients a strong prima facie right to

freedom from unnecessary pain, . . . [and] there is the duty to do

all that can be done within the limits of current medical knowledge

and available resources to relieve all the pain and suffering which

can be alleviated. . . . [T]hese rights and duties . . . can be derived

in one way or another from almost every major philosophical

theory of ethics available to us. In that sense they are broadly

justified.” Edwards, Pain and the Ethics of Pain Management, 18

Soc. Sci. Med. 515, 517 (1984) (emphasis added); accord, Morris,

The Culture of Pain, 191 (1991) (observing that “not relieving

pain brushes dangerously close to the act of willfully inflicting it”

(original emphasis)).

(footnote continued)

13

The decisions of this Court and the arguments of the

government itself in other, related contexts are in accord

with the standards that inform medical practice. A majority

of this Court in Planned Parenthood v. Casey, 505 U.S. 833,

852 (1992); Hudson v. McMillian, 503 U.S. 1, 9-10 (1992);

Ingraham v. Wright, 430U.S. at 673-74, assumed the

existence of a fundamental right of a seriously ill patient to

be free from unnecessary pain and suffering.

In the United States’ amicus brief for the petitioners in

Washington v. Glucksberg, 521 U.S. 702, the Solicitor

General cited these decisions to assert that the infliction of

severe pain or suffering on an individual implicates a

fundamental liberty interest:

A competent, terminally ill adult has a

constitutionally cognizable liberty interest in

avoiding the kind of suffering experienced by

the plaintiffs in this case. That liberty interest

encompasses an interest in avoiding not only

severe physical pain, but also the despair and

distress that comes from physical

deterioration and the inability to control basic

In fact, the duty of physicians to help patients to be free from

pain ultimately implicates the Judeo-Christian religious tradition

and encompasses recognition of the role that narcotics may play in

achieving this end. For example, at a convention of Catholic

physicians in 1957, the Pope responded to a series of questions

directed at an individual’s right to be free of pain and

acknowledged the role of narcotics in safeguarding this right. The

Pope stated that “[tJhe patient desiring to avoid or relieve pain can

in good conscience use those means discovered by science which,

in themselves, are not immoral” (Russell, Freedom to Die: Moral

——

14

bodily or mental functions in the terminal

stage of an illness.

Brief for the United States as Amici Curiae Supporting

Petitioners, available in 1996 WL 663185, at *8, 12-13

(1996), in Washington v. Glucksberg, 521 U.S. 702 (1997)

(No. 96-110).'°

The right to be free from severe pain and suffering is thus

- a fundamental liberty interest that is central to the Nation’s

history and traditions.'® For these reasons, the government

cannot, consistent with the Due Process Clause, abridge the

rights of seriously ill patients by preventing or deterring their

physicians from recommending controlled substances in kind

and quantity sufficient to relieve their pain.'’

B. The sanctity of the physician-patient relationship.

The right to consult with one’s doctor about one’s

medical condition also is recognized as a fundamental right

deeply rooted in our history and legal tradition. The right

asserted by the Members—to prevent governmental

5 In its amicus brief, the United States also argued that a

state cannot prevent a person in extreme pain from obtaining

medication demonstrated to be safe and effective in relieving that

pain (see id. 1996 WL 663185 at *13) and listed loss of appetite

and nausea as conditions of a terminally ill person that would

trigger this liberty interest. See id. at *15-16. Solicitor General

Dellinger reiterated the existence of this fundamental liberty

interest in oral argument. Transcript of Oral Argument,

Washington v. Glucksberg, 521 U.S. 702 (No. 96-110), available

in 1997 WL 13671, at *18, *20-21 (Jan. 8, 1997).

" Cf. Vacco v. Quill, 521 U.S. 793, 807 n.11 (1997) (stating

that “[jJust as a State may prohibit assisting suicide while

permitting patients to refuse unwanted lifesaving treatment, it may

permit palliative care related to that refusal, which may have the

foreseen but unintended ‘double effect’ of hastening the patient’s

death”).

. See also Tucker, The Death with Dignity Movement:

Protecting Rights and Expanding Options After Glucksberg and

Quill, 82 Minn. L. Rev. 923, 936 (1998).

15

interference with their ability to act on their doctors’

treatment recommendations—is based in significant part on

imperatives established by the doctor-patient relationship.

For this reason as well, the Members’ claimed right must be

accorded constitutional status.

The Court has acknowledged the sanctity of the

physician-patient relationship in numerous substantive due

process cases. It was first noted in Griswold v. Connecticut,

381 U.S. 479 (1965). There, doctors from Planned

Parenthood violated a Connecticut law making it a crime to

distribute contraceptives. Jd. at 480. In finding that the

criminalization of contraception violated a right guaranteed

by due process, the Court relied on the fact that “[t]his law

operates directly on an intimate relation of husband and wife

and their physician’s role in one aspect of thai relation.” Jd.

at 482.

The importance of the physician-patient relationship also

has been stressed in the abortion cases. For example, in

Roe v. Wade, 410 U.S. 113 (1973), the Court emphasized

that myriad and fundamental privacy and personal liberty

interests, such as medical, physical, social, and spiritual

choice, were impugned by the criminalization of abortion. Jd

at 153. The Roe decision also stressed that such a violation

of privacy interests, although personal to the woman,

detrimentally affected the physician-patient relationship. Jd.

at 153, 156."

More recently, in Washington v. Glucksberg, the Court

observed that the State also has an interest in protecting the

ss The abortion cases also note the importance of medical

consultation to the exercise of fundamental rights. See Roe,

410 US. at 164; Casey, 505 U.S. at 879, 883-84; Stenberg v.

Carhart, 530U.S. 914, __, 120S.Ct. 2597, 2618 (2000)

(O’Connor J., concurring) (stating that, “As we held in Casey, . . .

any such regulation or proscription [of abortion] must contain an

exception for instances ‘where it is necessary, in appropriate

medical judgment, for the preservation of the life or health of the

mother.””).

16

integrity and ethics of the medical profession. 521 U.S. at

731. The Court found that, in this regard, “physician-

assisted suicide could, it is argued, undermine the trust that is

esseatial to the doctor-patient relationship by blurring the

time-honored line between healing and harming.” Jd.

Likewise, in his concurrence in Washington v.

Glucksberg, Justice Souter relied upon the view that medical

assistance may fall within the penumbra of a cognizable

liberty interest: “[w]ithout physician assistance in abortion,

the woman’s right would have too often amounted to nothing

more than a right to self-mutilation.” 521 U.S. at 778.

Justice Souter also affirmed the strong tradition of

comprehensive medical care in our society:

[T]he Court recognized that the good

physician is not just a mechanic of the human

body whose services have no bearing on a

person’s moral choices, but one who does

more that treat symptoms, one who ministers

to the patient.

Id. at 779.'°

The importance of the physician-patient relationship is

further demonstrated by the existence of state legislation

granting a statutory physician-patient privilege. Currently,

forty-one states recognize some form of a physician-patient

of In his concurrence in Washington v. Glucksberg, 521 U.S.

702, Justice Stevens also emphasized the intimate nature of the

doctor-patient relationship:

For doctors who have longstanding relationships

with their patients, who have given their patients

advice on alternative treatments, who are attentive

to their patient’s individual needs, and who are

knowledgeable about pain symptom management

and palliative care options, [] heeding a patient’s

desire to assist in her suicide would not serve to

harm the physician-patient relationship.

Id. ai 748.

17

testimonial privilege. See Appendix A. Moreover, many of

the statutory privileges are very old. New York was the first

State to pass a physician-patient testimonial privilege in

1828, with Missouri following suit in 1835. See 8 Wigmore

on Evidence, § 2380 (rev. ed. 1961). Though physician-

patient communication is “subject to reasonable licensing

and regulation by the State” (Casey, 505 U.S. at 884), when

such regulation defeats the purpose of the physician-patient

relationship by preventing the physician from fulfilling his or

her duties, such regulation is impermissible. See, e.g.,

Conant v. McCaffrey, 172 F.R.D. 681, 694-95 (N.D. Cai.

1997) (holding that government’s Statutory authority to

regulate distribution and possession of drugs did not allow

government to quash protected speech between physician

and patient).

In this case, the interests arising within the physician-

patient relationships are of the highest order. Recognition of

the medical necessity defense to prevent governmental

interdiction of the Members’ personal, self-funded decisions

to use medicinal cannabis as recommended by their doctors

will safeguard the physician-patient _ relationships.

Moreover, unless unfettered communication and the freedom

to act on one’s physician’s advice are guaranteed by the Due

Process Clause in this context, the related fundamental rights

of bodily integrity and freedom from pain and suffering will

be rendered nugatory.

Il. The Members’ Fundamental Right Is Different

From The Rights Asserted In Carnohan And

Rutherford, Which Therefore Have No

Application Here.

The government argues that the right the Members assert

here cannot exist because courts have held that there is no

fundamental right to use an unapproved drug for medical

treatment. See Brf. at 25, fn.14 (citing Carnohan v. United

States, 616F.2d at 1122; Rutherford v. United States,

616 F.2d at 457; and other cases). The government’s

argument is incorrect.

The cases invoked by the government have no

application here. None involved the fundamental right

In Carnohan, for example, the plaintiff brought a

declaratory action “to secure the right to obtain and use

The court of appeals rejected this claim, finding that the

plaintiff was required to ex! his admin ve

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APPENDIX A

United States Jurisdictions With a

Statutory Physician-Patient Testimonial Privilege

State Code #

Alaska _ Alaska R. Evid. 504

Arizona Ariz. Rev. Stat. § 12-2235

Arkansas Ark. R. Evid. 503

California Cal. Evid. Code §§ 990-1007

Colorado Col. Rev. Stat. § 13-90-107

Delaware Del. R. Evid. 503

District of Columbia D.C. Code Ann. § 14 -307

Hawaii Haw. Rev. Stat. § 504

Idaho Idaho Code § 9-203

Illinois 735 Ill. Comp. Stat. 5/8-802

Indiana Ind. Code § 34-46-3-1

Iowa Iowa Code § 622.10

Kansas Kan. Stat. Ann. § 60-427

Louisiana La. Code. Evid. Art. 510

Maine Me. R. Rev. 503

Michigan Mich. Stat. Ann. § 600.2157

Minnesota Minn. Stat. § 595.02

Mississippi Miss. Code Ann. § 13-1-21

Missouri Mo. Rev. Stat. § 491.060

Montana Mont. Code. Ann. § 26-1-805

Nebraska Neb. Rev. Stat. § 27-504

State

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Dakota

Texas

Utah

Vermont

Virginia

Washington

Wisconsin

Wyoming

2a

Code #

Nev. Rev. Stat. Ann. § 49.225

N.H. Rev. Stat. Ann. § 329:26

N.J. Stat. Ann. § 2A:84A-22.2

N.M. R. Evid. 11-504

N.Y. Civ. Prac. L. & R. § 4504

N.C. Gen. Stat. § 8-53

N.D. R. Evid. 503

Ohio Rev. Code. § 2317.02

Okla Stat. § 2503

Or. Rev. Stat. § 40.235

42 Pa. Code § 5929

R.I. Gen. Laws §5-37.3-6.1

S.D. Codified Laws § 19-13-7

Tex. R. Evid. 509

Utah R. Evid. 506

Vt. Stat. Ann. §1612

Va. Code Ann. § 8.01-399

Wash. Rev. Code § 5.60.060

Wis. Stat. § 905.04

Wyo. Stat. Ann. § 1-12-101