Global Ganja Report

The Montana Supreme Court ruled Sept. 11 that there is no fundamental right to cultivation, distribution or use of medical marijuana. Plaintiffs in the case sought to block enactment of a 2011 law, SB 423, a more restrictive measure that repealed an earlier law permitting the use of  medical  marijuana in the Big Sky state. Plaintiffs asserted that the new law violates rights of employment, health and privacy guaranteed by Montana's constitution. But the justices did not agree, with Justice Michael Wheat writing: "In pursuing one's own health, an individual has a fundamental right to obtain and reject medical treatment... But, this right does not extend to give a patient a fundamental right to use any drug, regardless of its legality." 

The court sent the decision back to Helena district court, instructing it to use a "rational basis" instead of a "strict scrutiny" test to determine whether the law passes muster. The "strict scrutiny" test places a heavier burden on the state to justify a law, requiring a compelling state interest. A "rational basis" review is the lowest level of scrutiny a court can apply, only requiring a law to be rationally related to a legitimate state interest. James Goetz, attorney for the Montana Cannabis Industry Association and other plaintiffs, told the Missoulian newspaper that he intends to file an alternate argument under the rational basis test. "We will take that back to the District Court because this law is indeed not rational," he said.

Meanwhile, before the district court gets to rule, voters are likely to weigh in. Medical marijuana supporters obtained enough signatures to challenge SB 423on the November ballot as a referendum. But even if voters support the measure to rescind the restrictions, the conflict between state and federal laws will remain. In the majority opinion, Justice Wheat wrote: "Plaintiffs cannot seriously contend that they have a fundamental right to medical marijuana when it is still unequivocally illegal under the Controlled Substances Act."

In January, a judge for the US District Court for the District of Montana ruled that the state's medical marijuana law does not protect providers from federal prosecution, in a case brought by the Montana Caregivers Association. (WSJ Law Blog, Jurist, Sept. 12; Missoulan, Sept. 11)

Image: Jurist

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