Fundamental rights" are few and far between. Because these are judicially created rights, courts should be cautious in granting new rights. Judges should begin their assessment of whether a right is fundamental by looking at the text of the U.S. Constitution. If the claimed right is not listed in the U.S. Constitution, judges should next look toward history to determine if the claimed right is anchored in history and implicit in the concept of ordered liberty. The best practice is to ensure that the claimed right is carefully and narrowly phrased. The Glucksberg case gives a solid example of this approach.

Medical Marijuana in the United States - Fundamental Right or Legal Wrong?

Charlie Erickson is a 40-year-old man. He has an unusually painful, non-terminal disease. For many months, Charlie and his doctor have struggled to manage his pain. They have tried numerous traditional approaches. None have worked. Despite high medical bills and various experimental medications, Charlie experiences nearly daily and debilitating pain. His pain interferes with his work, his marriage, and many of his life activities.

Charlie traveled to Germany, a country where medical marijuana is legal. Charlie found medical marijuana notably helpful in relieving his pain. Upon his return, Charlie and his doctor agreed that Charlie should either move to a country where medical marijuana is legal or a state where there is state-wide access to marijuana. Charlie believes he has a constitutional right to access medical marijuana. He believes this right is similar to a woman's right to access abortion. He believes that health care decisions, made in consultation with an individual's treating physician, have long been protected in the United States. From accessing contraceptives to having the right to refuse unwanted medical care, Charlie claims our Constitution protects the right to seek established medical treatment following consultation with a person's doctor. Charlie further challenges that the government cannot force a person to resort to a course of treatment even the CDC and President acknowledge is risky (opioids) despite proof that a less risky alternative exists and is effective. Congress passed the Marihuana Tax Act of 1937 essentially banning marijuana throughout the nation. Congress passed the law over the American Medical Association's strong objections related to marijuana's effective medical use. (November, 2019), the House Judiciary Committee voted the following legislation out of Committee to be considered by the full House of Representatives. This Bill is not yet law and would still require a positive vote by full House, the Senate and a signature by the President. There is no way to predict whether the following will become an actual law.

Charlie is in crisis. His continuing pain places him at the crossroads of immediate choice. To avoid arrest, to avoid moving and to avoid beginning opioid treatment, Charlie filed suit in federal court seeking a declaratory judgment permitting him to receive medicinally approved amounts of marijuana pursuant to his doctor's judgment. He asserts two main claims: First, Charlie asserts that federally criminalizing medical marijuana violates Article I's Interstate Commerce Clause because the true prohibition is not an article of commerce (marijuana) but the act of physicians advising their patients about effective medical treatments. Charlie relies upon the Lopez (gun possession) and Morrison (sexual assault at college dorm) cases for support of his claim. Second, Charlie asserts a fundamental right to access medical marijuana. Charlie claims that the language in Casey addressing the right of a person to define their own concept of "liberty" and cases expanding privacy support this right. He further asserts that all past cases involving physician-patient rights, such as Griswold and Roe constitutionalize the right to follow a physician's medically-accepted course of treatment.

You work for a U.S. District Judge for the Northern District of Texas. She is trying to determine whether the above facts establish that Charlie has a fundamental right to access medical care or use medical marijuana. She is not certain, yet, how to frame this potential "fundamental right."The judge would like your succinct advice on this important Constitutional question.