The courts await unconstitutional legislation
No one who reads this article will be a stranger to the controversy and turmoil surrounding the medical marijuana industry in Missouri. Between regular investigatory committee meetings and the lengthy verification process new licensees are going through, it’s been a frustrating start. One of the big problems facing implementation has been the lack of access to federal background check databases which is necessary before anyone can start a business or begin the hiring process. The legislature wisely started fast-tracking a bill to deal with the problem, but nothing in the legislative process is ever easy.
The bill, HB1896, became a magnet for amendments that were unrelated to the background check problem and were controversial in nature. One of those amendments was initially put on the bill. The amendment created a physician certification database and required all physician certifications to include a statement that the physician had met with the patient “in person.” This amendment would have effectively prohibited any telehealth appointments between physicians willing to recommend medical marijuana and their patients. Luckily, House leadership stepped in and used the House rules to send the bill back to the committee and have the amendment stripped off. The amendment is not in the version of the bill which is now pending before the Senate. Even though the amendment is not in the current version of the bill, there are other provisions pending before the legislature that would also significantly impact patient access to medical marijuana.
As with many potential new laws, the question is, “Can they do that?”.
The short answer is, “No, they can’t.”
I can’t take any credit for the drafting of Article XIV, but there are several hidden delights for someone who studies Constitutional Law and the limits of legislative and executive authority. For example, there is no requirement that a patient prove they purchased the product they possess in Missouri. As long as they are under the limit set by the Department for possession by an individual, the patient is complying with the law. The lack of a restriction on the source of the product means patients are currently able to possess medical marijuana and begin treatment even though no dispensaries have opened in the state.
The biggest gem in the Article is in Subsection 6. The subsection reads:
Nothing in this section shall limit the general assembly from enacting laws consistent with this section, or otherwise effectuating the patient rights of this section. The legislature shall not enact laws that hinder the right of qualifying patients to access marijuana for medical use as granted by this section.
The language means that any law passed by the legislature that “hinders” patient access is void. A case would have to be brought in court to get it struck down, but the Constitution is clear, that sort of law is not allowed. The easiest and fastest way would be for a potential patient in a rural area to bring a “Declaratory Judgment” action claiming they don’t have access to an in-person clinic in their area and need telehealth services. The action could be brought as soon as the bill went into effect. Another way would be to wait until someone tried to get a patient access card with a telehealth certification and was denied. Either way, the language of the Constitution provides express protection.
In some cases, the Legislature can argue they had a rational basis for their actions. That argument works when you are claiming the law violates a provision like the Equal Protection clause. It is a very low standard and is why most Equal Protection arguments that don’t involve protected classes (race, gender, disability, national origin) fail. However, when a Constitutional protection is explicit, like this one, the standard is much higher for when the Legislature may violate it. They must prove they had a legitimate basis for the decision and that the solution is narrowly tailored to the harm they are trying to avoid. It would be difficult for a Legislature that has consistently expanded telehealth services in Missouri to argue they don’t adequately provide safe and effective patient care.
The good news is, the telehealth ban was removed from the House version of the bill. The bad news is, the bill still has to make it through the Senate without the amendment being reattached, and there are provisions in other bills that would also hinder patient access. For example, the Senate recently approved a bill that contains an apparent prohibition on any medical marijuana product that looks like candy. The legislative session doesn’t end until May 15. There is still time for mischief, but hopefully, the necessary provisions will pass without anything that needs to be challenged in the Court.
Sharon Geuea Jones is a lobbyist and attorney in Missouri. She has advocated on behalf of her clients in the legislature since 2002. After the recent adoption of the medical cannabis amendment in Missouri, Sharon began assisting clients in understanding and forming the regulations for the new industry. She has written multiple articles for professional publications, and is a frequent speaker on issues of advocacy and legal strategy. She currently resides in Columbia, Missouri. You can learn more on her website www.jonesadvocacy.co.
This article is for general informational purposes only. This information is not legal advice and it should not be considered to create an attorney-client relationship. You should always consult an attorney for advice regarding your individual situation. Federal laws currently conflict with Missouri law legalizing cannabis use and possession.