A controversial draft opinion from the U.S. Supreme Court docket regarding abortion rights appears to argue in a little-noticed passage that the constitutional justification for Roe v. Wade is so broad that it may theoretically be interpreted in a manner that invalidates drug criminalization.
Whereas the draft majority opinion that was leaked this week has not been formally submitted and may very well be topic to modifications earlier than it’s finalized, Affiliate Justice Samuel Alito’s argument in favor of overturning the half-century-old precedent on abortion rights additionally briefly touched on drug coverage.
“These makes an attempt to justify abortion by appeals to a broader proper to autonomy and to outline one’s ‘idea of existence’ show an excessive amount of,” the opinion states. “These standards, at a excessive degree of generality, may license elementary rights to illicit drug use, prostitution, and the like.”
“None of those rights has any declare to being deeply rooted in historical past,” Alito wrote within the draft, which was first revealed by Politico.
What the justice appears to be saying is that, if Roe v. Wade had been to face, it may invite additional authorized challenges over points the place authorities coverage is seen as interfering with the autonomy of people, probably rendering it unconstitutional to ban folks from utilizing illicit medication, for instance.
Alex Kreit, a authorized knowledgeable who focuses on drug coverage and teaches at Northern Kentucky College, informed Marijuana Second that the argument isn’t with out precedent, although it hasn’t had a lot success within the courts thus far.
Individuals “have made the argument that there’s a fundament proper to make use of medication,” Kreit mentioned, however he doesn’t consider that “any have had any promise exterior of the context of medical makes use of.”
There have been cases the place courts have been confronted with challenges regarding the proper of affected person to make use of at the moment prohibited substances like marijuana (instances that haven’t been profitable thus far), however what’s distinctive in regards to the Alito interpretation is that he’s making a extra nuanced level in regards to the idea of autonomy beneath the Structure.
Douglas Berman, a legislation professor at Ohio State College, informed Marijuana Second that he has “lengthy thought there may very well be potent arguments for constitutionally protected rights to make use of a drug for well being want if there are not any externalities.”
“Such arguments have by no means gotten any traction in courts, however I agree with the notion that taking privateness/autonomy rights critical may get you there,” he mentioned.
Berman cited a 1975 Alaska Supreme Court docket case as an in depth instance of how the judiciary may method the intersection of privateness and drug coverage. In that case, the courtroom decided that non-public possession of small quantities of hashish by adults in their very own houses is protected beneath the state Structure.
There was a separate problem that reached the U.S. Supreme Court docket regarding California’s medical hashish program and the rights of sufferers to develop and use their very own marijuana regardless of federal prohibition, however that case centered on the Commerce Clause of the Structure, quite than the notion of non-public autonomy.
In fact, the draft opinion within the present abortion case isn’t particularly about drug coverage, neither is it instantly clear what sort of implications Alito’s brief apart on the problem may need for future challenges.
Nonetheless, the opinion—if it’s finally dominated on with that language intact—does elevate questions on how the autonomy debate may play out with respect to federal drug criminalization.
In the meantime, the Supreme Court docket is individually being requested to weigh in on whether or not federal legislation protects employers who select to not cowl medical marijuana prices for employees injured on the job, even in states that search to require it. State courts have reached completely different conclusions on the query, however now the nation’s high courtroom is asking the highest Justice Division lawyer to weigh in.
Empire State NORML and two different teams—the New York Metropolis Hashish Business Affiliation and the Hudson Valley Hashish Business Affiliation—submitted amici curiae briefs urging the courtroom to listen to the case in December.
In the meantime, even one of the vital conservative U.S. Supreme Court docket justices, Clarence Thomas, denounced the federal authorities’s inconsistent method to marijuana coverage final 12 months, and he advised that outright nationwide prohibition may very well be unconstitutional.
On the time, the courtroom declined to take up a case associated to an Inner Income Service investigation into tax deductions claimed by a Colorado marijuana dispensary. However Thomas issued an announcement that extra broadly addressed the federal-state marijuana disconnect.
In 2020, justices declined to listen to a case difficult the constitutionality of federal marijuana prohibition.
Picture parts courtesy of rawpixel and Philip Steffan.