Medical marijuana users have no constitutional right to grow their own drug, a trial judge ruled this week.
Judge Katherine Cooper threw out a challenge by two men to a provision in the 2010 voter-approved Arizona Medical Marijuana Act, which says only those living further than 25 miles from a state-regulated dispensary can cultivate the plants. She said there is no basis for their claim that the provision limits their health care rights.
But Cooper left the door open for the men to raise a separate challenge that the 25-mile rule amounts to a violation of their rights under constitutional provisions guaranteeing everyone equal protection of the law. She said, though, they have yet to make a case for that claim.
The 2010 law allows those with a doctor’s recommendation to get a card from the state allowing them to legally obtain and possess up to 2 1/2 ounces of marijuana every two weeks. That law also envisioned a system of state-regulated dispensaries to sell the drug. But it also says anyone who lives farther than 25 miles from a dispensary could grow up to 12 plants at any one time.
Initially, that exemption applied to everyone because it took the state more than a year to license dispensaries. But state Health Director Will Humble said just about all of the approximately 40,000 medical marijuana cardholders in Arizona now live close enough to a dispensary.
The challengers, who had been growing their own, did not want to give up that right. They cited provisions of a 2012 constitutional amendment, which says that individuals cannot be forced to participate in any health care system.
Attorney Michael Walz said forcing those who are entitled to use medical marijuana to buy their drugs at retail from a dispensary amounts to forcing them to participate in that system.
“Dispensaries are not a ‘health care system,’” the judge wrote.
She said they do not manage, process, enroll, or pay for health care services for qualifying patients.
And Cooper said the amendment the men are relying on clearly applies to mandated health insurance “not to businesses that sell controlled substances.”
Anyway, the judge wrote, participating in the Arizona Medical Marijuana Act is hardly a compulsory program. Instead, she pointed out, it simply allows those who qualify to legally obtain and possess marijuana.
“It does not compel people to use medical marijuana or even obtain a qualifying registry card,” Cooper said.
An appeal is likely.