I:\28531 Ind Law Rev 46-2\46masthead.wpd

WOULD GOVERNMENT PROHIBITION OF

MARIJUANA PASS STRICT SCRUTINY?

TIM WEBER

INTRODUCTION

The federal government currently classifies marijuana as a Schedule I

controlled substance under the Controlled Substances Act of 1970.

Essentially,

marijuana production, possession, sale, and use are illegal.

In addition, any

other plant similar to marijuana, including industrial hemp, is illegal.

However,

an argument was made for the existence of a fundamental right of bodily

autonomy in an article by Martin D. Carcieri.

This article also suggested that

marijuana use may fall under this right of bodily autonomy, but the article did not

delve into the issue, instead suggesting the issues involved be the topic of another

law review article.

If bodily autonomy is a fundamental right, and marijuana use

falls under that fundamental right, any law prohibiting marijuana use would have

to pass strict scrutiny.

This Note asks and answers three questions. Part I asks, “Is a

constitutionally protected fundamental right of bodily autonomy compatible with

Supreme Court precedent and the Constitution such that the Court should

recognize said right?” In answering this question, a light review of the strict

scrutiny standard and currently recognized fundamental rights is undertaken to

provide a framework for a discussion of federal and state precedent regarding the

issue. Part II asks, “If there was to be a fundamental right to bodily autonomy,

should marijuana use fall within this right?” In determining whether the bodily

autonomy right should extend to marijuana use, the histories of tobacco, alcohol,

and marijuana are examined to put in perspective a subsequent comparison of the

three. Part III asks, “If there is a fundamental right to bodily autonomy and

marijuana use falls under the right, would the current federal government

prohibition of marijuana pass strict scrutiny for its infringement on bodily

autonomy?” Here, the proposed compelling interests of morality, crime, and

protecting health—as these relate to marijuana—are debunked, and the broad

* This Note expresses an academic argument only. It does not represent the views of any

employer or other institution of which the author is a part.

** J.D. Candidate, 2013, Indiana University Robert H. McKinney School of Law; B.S.,

2009, University of Evansville.

1. 21 U.S.C. §§ 801-971 (2006 & Supp. V 2011).

2. Id. § 41(a)

3. Id. § 841(b)(1)(A)(vii)

4. Martin D. Carcieri, Obama, the Fourteenth Amendment, and the Drug War, 44 A

KRON

L. REV. 303, 307-308, 311-12 (2011).

5. Id. at 329.

6. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (applying strict

scrutiny to punitive sterilization); United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938)

(creating a higher level of judicial scrutiny for legislation that met certain conditions).

530 INDIANA LAW REVIEW [Vol. 46:529

nature of the prohibition is demonstrated by citing the negative effects the federal

government prohibition has had on U.S. industrial hemp production and medical

marijuana research and use. In the end, this Note deems that the Supreme Court

should take the following actions: (1) recognize a fundamental right to bodily

autonomy; (2) include marijuana use in this right; and (3) strike down the current

federal prohibition of marijuana for failing to meet strict scrutiny.

THE FOURTEENTH AMENDMENT, STRICT SCRUTINY,

AND FUNDAMENTAL RIGHTS

We tend to take for granted our ability to decide what to do with our bodies.

It is our naturally occurring assumption that we decide what to eat and drink,

what clothes and hairstyle to wear, and what medicines and medical procedures

we will endure. The public balks at the very idea of the government mandating

anything with regard to these issues,

acquiescing to regulation only when the

public interest is in line with such a mandate.

This is as it should be. No man

or woman of sound mind should be controlled in such a way, and to do so would

be a crime on the government’s part that would not be long tolerated by the

citizens.

In fact, the idea that we each decide what happens to our own bodies has a

long history in the United States, with language dating back to at least 1891

suggesting such a right exists.

However, there is currently no “bodily

autonomy” right recognized by the U.S. Constitution, either in the Bill of Rights

or in terms of those rights the Court has recognized as fundamental under the

Fourteenth Amendment.

Therefore, the question to answer is whether there

exists any case law that supports the recognition of such a right. However, a

brief discussion of the Fourteenth Amendment, the different levels of scrutiny,

and the recognized and proposed fundamental rights are first necessary to lay the

groundwork for understanding the issue itself.

When the Fourteenth Amendment recognizes a right as fundamental, laws

burdening that right will be treated differently from laws burdening rights that

have not been deemed fundamental.

The Fourteenth Amendment to the United

States Constitution states, “No State shall . . . deprive any person of life, liberty,

7. See Health Opinions: Should the Government Have a Say in Our Diets?, DEBATE.ORG,

http://debates.juggle.com/should-the-government-have-a-say-in-our-diets (last visited Mar. 20,

2013).

8. See generally U.S.

CONST. amend. XVIII, repealed by U.S. CONST. amend. XXI, § 1.

(instituting a prohibition on alcohol in the United States, which was later repealed when the

prohibition lost popularity).

9. See Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more

sacred, or is more carefully guarded by the common law, than the right of every individual to the

possession and control of his own person, free from all restraint or interference of others, unless by

clear and unquestionable authority of law.”).

10. See U.S.

CONST. amends. I-X; Carcieri, supra note 4, at 311-15.

11. See G

EOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 768-69 (5th ed. 2005).

2013] MARIJUANA AND STRICT SCRUTINY 531

or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Under either a due process or

equal protection claim, a court usually starts with the presumption that the

government statute, rule, or regulation burdening a right is valid and

constitutional.

Generally, for the courts to uphold the government action, the

government is only required to demonstrate a “legitimate state interest” in

enacting the statute, rule, or regulation, and a rational relationship between the

statute, rule, or regulation and the interest to be furthered.

However, courts can subject a law to heightened scrutiny if it either burdens

a fundamental right or a suspect classification.

In these cases, courts do not

defer to the government.

This is called strict scrutiny.

Under strict scrutiny,

the government interest in enacting the law must be compelling, and the law must

be narrowly tailored to meet the interest.

In terms of suspect class, only the

class of race gets strict scrutiny.

In terms of due process and equal protection, however, the list of

fundamental rights has grown over time, and includes, at least arguably,

privacy,

voting,

travel,

and access to the judicial system.

The most known fundamental right likely is the right to privacy. In Griswold

v. Connecticut,

the Supreme Court, through an opinion by Justice Douglas,

indicated that a Connecticut law forbidding use of contraceptives

unconstitutionally intruded upon the right of marital privacy.

In finding a

constitutional right to privacy, the Court pointed to the “penumbras” of the

Constitution, and inferred that the First, Third, Fourth, Fifth, and Ninth

Amendments collectively create a right to privacy.

This indicates the Court’s

12. U.S. CONST. amend. XIV, § 1.

13. See Schweiker v. Wilson, 450 U.S. 221, 239 (1981); U.S. Ry. Ret. Bd. v. Fritz, 449 U.S.

166, 174-175 (1980); Vance v. Bradley, 440 U.S. 93, 97 (1979); City of New Orleans v. Dukes,

427 U.S. 297, 303 (1976).

14. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

15. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

16. Id.

17. See S

TONE ET AL., supra note 11, at 531.

18. See Roe v. Wade, 410 U.S. 113, 155 (1973); Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535, 541 (1942).

19. See S

TONE ET AL., supra note 11, at 523, 533-45, 576-81.

20. See Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

21. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966).

22. See Shapiro v. Thompson, 394 U.S. 618, 641 (1969), overruled in part by Edelman v.

Jordan, 415 U.S. 651 (1974) (applying strict scrutiny to Connecticut law denying an application

for Aid to Families with Dependent Children assistance because appellee had not lived in

Connecticut for one year based on the idea that the law restricts interstate travel).

23. Boddie v. Connecticut, 401 U.S. 371, 382 (1971).

24. 381 U.S. at 479.

25. Id. at 486.

26. Id. at 484.

532 INDIANA LAW REVIEW [Vol. 46:529

willingness to find that some rights are fundamental despite not being explicitly

mentioned in the Constitution or its subsequent amendments.

Although privacy might be the right that comes to mind when fundamental

rights are brought up, the ability of U.S. citizens to vote in elections is also an

important aspect of our system of ordered liberty. In Harper v. Virginia State

Board of Elections,

the Supreme Court held that Virginia’s poll tax was

unconstitutional because it was “inconsistent with the Equal Protection Clause.”

In issuing its holding, the Court stated the following:

We have long been mindful that where fundamental rights and liberties

are asserted under the Equal Protection Clause, classifications which

might invade or restrain them must be closely scrutinized and carefully

confined. Those principles apply here. For to repeat, wealth or fee

paying has, in our view, no relation to voting qualifications; the right to

vote is too precious, too fundamental to be so burdened or conditioned.

The Court’s use of strong, emphatic language in this holding illustrates the

importance our legal system gives to fundamental rights.

Another right of U.S. citizens the Court has determined to be fundamental is

the ability of each citizen to travel, at least between states. In Shapiro v.

Thompson,

the Supreme Court held that a statutory prohibition against

providing welfare benefits to those who had been residents of the state for less

than one year created a discriminatory classification in violation of equal

protection laws.

The final right, access to the judicial system, is more tenuous than those

previously listed because, as the Court indicated in Boddie v. Connecticut,

We do not decide that access for all individuals to the courts is a right

that is, in all circumstances, guaranteed by the Due Process Clause of the

Fourteenth Amendment so that its exercise may not be placed beyond the

reach of any individual, for, as we have already noted, in the case before

us this right is the exclusive precondition to the adjustment of a

fundamental human relationship. The requirement that these appellants

resort to the judicial process is entirely a state-created matter.

However, the Supreme Court did hold that in view of the importance of the

marriage relationship in society and the state monopolization of divorce, due

process of law prohibits a state from denying access to its courts to individuals

who seek judicial dissolution of their marriages in good faith solely because of

27. 383 U.S. 663 (1966).

28. Id. at 665-66.

29. Id. at 670 (internal citations omitted).

30. 394 U.S. 618 (1966), overruled in part by Edelman v. Jordan, 415 U.S. 657 (1974).

31. Id. at 641.

32. 401 U.S. 371 (1971).

33. Id. at 382-83.

2013] MARIJUANA AND STRICT SCRUTINY 533

an inability to pay fees.

Although these four cases represent the only fundamental rights somewhat

recognized by the Supreme Court, at least two other rights have been proposed.

Past litigants have suggested fundamental rights to education and government

assistance programs, but the Supreme Court has rejected these arguments. In San

Antonio Independent School District v. Rodriguez,

the Supreme Court held that

it was improper to apply strict scrutiny to a challenge brought by several parents

of poor school children concerning the reliance on local property taxation by the

Texas school-financing system.

The Court discussed education as a

fundamental right and, after indicating its support for public education,

concluded that education was not a fundamental right.

In Dandridge v.

Williams,

the Court indicated that it would not apply strict scrutiny to denial of

government assistance programs by holding that a Maryland regulation capping

welfare benefits did not violate the Equal Protection Clause.

The Supreme Court has not recognized any new fundamental rights since the

tentative endorsement represented by Boddie in 1971.

This is evidence of a

trend in the federal system to reel in the list of fundamental rights granted under

the Fourteenth Amendment. However, it is not accurate to say the Supreme

Court would be unwilling to recognize a right should a legitimate one, such as

bodily autonomy, be brought to bear. Essentially, Supreme Court dicta supports

bodily autonomy’s position as a fundamental right, as evidenced by cases in the

following section.

A. Supreme Court Precedent Supporting a Bodily Autonomy

Fundamental Right

Although Supreme Court jurisprudence currently does not recognized bodily

autonomy as a fundamental right, the existing fundamental rights arguably have

bodily autonomy aspects. Furthermore, a significant amount of case law suggests

that U.S. citizens should have a right to bodily autonomy.

34. Id. at 374, 383.

35. 411 U.S. 1 (1973).

36. Id. at 37.

37. Id. at 29-30.

38. Id. at 37.

39. 397 U.S. 471 (1970).

40. Id. at 472-73, 485.

41. See Boddie v. Connecticut, 401 U.S. 371, 382 (1971); see also S

TONE ET AL., supra note

11, at 768-844 (discussing fundamental rights).

42. See, e.g., Lawrence v. Texas, 539 U.S. 558, 564, 574, 578-79 (2003); Planned Parenthood

of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992); Cruzan ex rel. Cruzan v. Mo. Dep’t of Health, 497

U.S. 261, 269 (1990); Winston v. Lee, 470 U.S. 753, 759 (1985); Roe v. Wade, 410 U.S. 113, 154

(1973); Boddie, 401 U.S. at 382; Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Rochin v.

California, 342 U.S. 165, 172 (1952); Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 254-55

(1891).

534 INDIANA LAW REVIEW [Vol. 46:529

In 1891, the Supreme Court, in Union Pacific Railway Co. v. Botsford,

determined if the trial court could force an individual against her consent to

undergo a medical examination for the purpose of ascertaining the extent of her

injuries.

The Court held, “The order moved for, subjecting the plaintiff’s

person to examination by a surgeon, without her consent and in advance of the

trial, was not according to the common law, to common usage, or to the statutes

of the United States.”

The Court, in reaching this holding, indicated that “[n]o

right is held more sacred, or is more carefully guarded by the common law, than

the right of every individual to the possession and control of his own person, free

from all restraint or interference of others, unless by clear and unquestionable

authority of law.”

This language strongly supports the position that bodily

autonomy is a fundamental right.

In Rochin v. California,

a man swallowed two capsules that the police

reasonably believed to be contraband.

The police pumped the man’s stomach

in order to retrieve the contraband.

The Supreme Court held that the forced

stomach pumping violated the liberty protected by the Due Process Clause of the

Fourteenth Amendment.

This ruling illustrates the Court’s willingness to

protect an individual’s right to control his or her own body and creates significant

support for the protection of bodily autonomy under the Fourteenth Amendment.

Although Griswold v. Connecticut

is primarily known for its role in the

creation of a fundamental right to privacy,

privacy, itself, arguably is only an

aspect of bodily autonomy.

In fact, the right to privacy and proposed right to

bodily autonomy mirror each other significantly in terms of their essential

argument for existence.

Joel Feinberg, a philosophy professor at the University

of Arizona, described the interrelationship between privacy and personal or

“bodily” autonomy as follows:

After all, we speak of “bodily autonomy,” and acknowledge its violation

in cases of assault, battery, rape, and so on. But surely our total

autonomy includes more than simply our bodily “territory,” and even in

respect to it, more is involved than simple immunity to uninvited

43. 141 U.S. at 250.

44. Id. at 251.

45. Id. at 257.

46. Id. at 251.

47. 342 U.S. at 165.

48. Id. at 166.

49. Id.

50. Id. at 172-74.

51. 381 U.S. 479 (1965).

52. Id. at 486.

53. See 3 J

OEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO SELF 52-54

(1986).

54. Id. at 53 (talking about each individual as the sovereign of themselves whose “personal

domain consists of the body, privacy, landed and chattel property, and at least vital life-decisions”).

2013] MARIJUANA AND STRICT SCRUTINY 535

contacts and invasions. Not only is my bodily autonomy violated by a

surgical operation (“invasion”) imposed on me against my will; it is also

violated in some circumstances by the withholding of the physical

treatment I request (when due allowance has been made for the personal

autonomy of the parties of whom the request is made). For to say that

I am sovereign over my bodily territory is to say that I, and I alone,

decide (so long as I am capable of deciding) what goes on there. My

authority is a discretionary competence, an authority to choose and make

decisions.

Furthermore, in Griswold, the Court recognized the existence of

“penumbras” of the Constitution that can create additional rights not found

explicitly in the text of the document.

Given this, the Court extrapolated that

the right to privacy exists, at least within a marriage.

Of particular interest for

a discussion of bodily autonomy is the Court’s use of the Ninth Amendment,

which provides, “The enumeration in the Constitution, of certain rights, shall not

be construed to deny or disparage others retained by the people.”

This

amendment’s passage by the founders and use by the Court in Griswold to justify

“creating” a right not previously found in the Constitution indicates that the

rights enumerated by the Constitution are not all-inclusive. Therefore, the

recognition of a bodily autonomy right by the Court would have a sound

constitutional backing despite the fact it is not explicitly stated anywhere in the

Constitution.

In Lawrence, the Supreme Court held a Texas law criminalizing sodomy,

even between consenting adults, was a violation of the Fourteenth Amendment.

Although this case, like Griswold, is often cited in relation to privacy issues, it

is also illustrative of at least the perceived trend of courts recognizing individual

rights, a trend that could lead to the recognition of a bodily autonomy right.

In Cruzan ex rel. Cruzan, the Supreme Court inferred from its prior rulings

that the Fourteenth Amendment gives a patient the right to refuse or discontinue

life preserving procedures.

The Court cited Botsford in discussing the

sacredness of an individual’s right to control his body.

The Court’s citation of

Botsford is telling because it indicates that the Cruzan Court was persuaded to

rule as it did due to, in part, bodily autonomy arguments.

The Court has expressly recognized the existence of a bodily or physical

autonomy right through dicta in several cases. For example, in Winston v. Lee,

the Supreme Court held Lee’s interest in avoiding the surgery to remove a bullet

55. Id.

56. Griswold, 381 U.S. at 484.

57. Id. at 486.

58. U.S.

CONST. amend. IX.

59. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).

60. Cruzan ex rel. Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990).

61. Id. at 269; see also Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

62. 470 U.S. 753 (1985).

536 INDIANA LAW REVIEW [Vol. 46:529

from under his collarbone pursuant to a police request outweighed the state

interest in violating his bodily autonomy.

Additionally, in Roe v. Wade,

the

Court held women may obtain abortions despite the state’s interest in preserving

fetal human life.

The Roe Court cited Botsford in its discussion,

stated

abortion is covered by the right to privacy,

and weighed the woman’s right to

privacy against the state’s interest in protecting prenatal life.

The Court

continued this discussion in Casey when it recognized that the two general rights

under which the right of the mother in Roe was justified were the right to make

family decisions and the right to physical autonomy.

These three cases taken

together illustrate the fact that the Court has recognized a bodily or physical

autonomy right in the dicta of its previous opinions.

B. Court Precedent from the States

Although there is ample United States Supreme Court precedent to

demonstrate that a fundamental right to bodily autonomy should be recognized,

there have also been a number of states that explicitly recognize or suggest that

bodily or physical autonomy is a fundamental right.

The Alaska Supreme Court has expressed support in dicta for a “personal

physical autonomy” category. In Huffman v. State,

the court held, in part, “the

right to make decisions about medical treatments for oneself or one’s children is

a fundamental liberty and privacy right in Alaska.”

In so holding, the Huffman

court indicated that controlling one’s own medical treatment falls into the same

category of “personal physical autonomy” as having control over one’s own

hairstyle and reproductive choices, which the Alaska Supreme Court had already

determined that the Alaska Constitution protects as fundamental rights.

The

Alaska Supreme Court’s characterization of “personal physical autonomy” as a

category that would include activities protected under privacy, such as

controlling one’s own medical treatment, hairstyle, and reproductive choices, is

indicative of the importance and weight that court gives to physical autonomy.

The Montana Supreme Court has expressed a stance similar to that of

Alaska’s Supreme Court, although the Montana court used slightly different

language.

In Armstrong v. State,

the Montana Supreme Court indicated that

63. Id. at 756, 764, 766-67.

64. 410 U.S. 113 (1973).

65. Id. at 162-63, 167.

66. Id. at 152; Botsford, 141 U.S. at 251.

67. Roe, 410 U.S. at 154.

68. Id. at 150.

69. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 835 (1992).

70. 204 P.3d 339 (Alaska 2009).

71. Id. at 346.

72. Id. (citing Breese v. Smith, 501 P.2d 159, 169–70 (Alaska 1972); Valley Hosp. Ass’n v.

Mat–Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997)).

73. Id. at 384 (recognizing Montana’s Constitution’s inclusion of a textual right to privacy,

2013] MARIJUANA AND STRICT SCRUTINY 537

legislation requiring pre-viability abortions be carried out by physicians infringes

on “the fundamental right of individual privacy guaranteed to every person under

Article II, Section 10 of the Montana Constitution.”

Furthermore, that court

held that the personal autonomy component of individual privacy “broadly

guarantees each individual the right to make medical judgments affecting her or

his bodily integrity and health in partnership with a chosen health care provider

free from the interference of the government, except in very limited

circumstances not at issue here.”

The Montana Supreme Court’s endorsement

of personal autonomy as a component of the fundamental privacy right in

Armstrong supports the creation of a stand-alone physical or bodily autonomy

right because the court here has already recognized physical autonomy as an

issue that should be given the highest level of scrutiny due to its relation to

privacy.

Alaska and Montana are not the only states whose judiciaries have discussed

an autonomy right. In State v. Presidential Women’s Center,

the Florida

Supreme Court stated, “The doctrine of medical informed consent is rooted in the

concepts of bodily autonomy and integrity.”

In State v. Miller,

the Hawaii

Supreme Court indicated that “[f]reedom from unjustified governmental

intrusions into . . . bodily autonomy [is] at the core of the liberty protected by due

process.”

In In re R.K., the Illinois Court of Appeals found the state had failed

to present adequate evidence to allow the involuntary administration of

medication to the respondent after the respondent asserted, “[T]he State failed to

prove that the benefits of the psychotropic medication to respondent outweighed

the side effects of the medication and the loss of her ‘bodily autonomy.’”

In 1914, Schloendorff v. Society of New York Hospital,

New York’s highest

court stated, “Every human being of adult years and sound mind has a right to

determine what shall be done with his own body.”

This language from a case

dating back to the last century embodies the history in the United States of

recognizing an individual’s right to determine what happens to his or her own

causing the discussion, and decision, to rest mostly on privacy grounds, although the decision also

included Feinburg’s discussion of the similarities between privacy and autonomy outlined in supra

note 55 and accompanying text).

74. 989 P.2d 364 (Mont. 1999).

75. Id.

76. Id.

77. 937 So. 2d 114 (Fla. 2006).

78. Id. at 119.

79. 933 P.2d 606 (Haw. 1997).

80. Id. at 610 (citing Foucha v. Louisiana, 507 U.S. 71, 80 (1992)).

81. In re R.K, 786 N.E.2d 212, 217 (Ill. App. Ct. 2003) (ruling in this manner after the

Respondent made a bodily autonomy right, but the actual basis of the decision was the Mental

Code, making it so that involuntary administration of a medication is not something that is to be

done lightly, thus supporting the existence of a bodily autonomy right).

82. 105 N.E.2d 92 (N.Y. 1914), abrogated by Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957).

83. Id. at 93.

538 INDIANA LAW REVIEW [Vol. 46:529

body in line with the holding in Botsford.

In Herman v. State, the Indiana Supreme Court, in 1855, found that a law that

absolutely forbade the manufacture and sale of whisky, ale, porter, and beer, for

use as a beverage was unconstitutional.

The suit was brought on habeas corpus

grounds,

and in holding the law invalid, the court stated,

[F]or under our system of government, founded in a confidence in man’s

capacity to direct his own conduct, designed to allow to each individual

the largest liberty consistent with the welfare of the whole, and to

subject the private affairs of the citizen to the least possible

governmental interference, some excesses will occur, and must be

tolerated, subject only to such punishment as may be inflicted.

This holding and the logic behind it suggests the existence of a broad personal

autonomy right that covers the use of alcohol as a beverage, and that this right is

one of the fundamental principles that the U.S. was founded upon.

Although these cases provide a glimpse into where some states currently

stand with regard to bodily autonomy, the Washington case of Seeley v. State

provides the greatest insight into this issue for the purposes of this Note. In

Seeley, a terminally ill cancer patient who wanted to smoke marijuana to control

the side effects of chemotherapy filed suit seeking declaratory judgment that it

was a violation of the Washington Constitution that, per the Uniform Controlled

Substance Act, marijuana was classified as a Schedule I controlled substance.

In discussion of the issues presented, Justice Sanders in dissent stated,

Roe and Casey clarify that the more personal the individual interest, the

more that interest concerns bodily autonomy, the more that interest

centers on purely personal concerns such as the avoidance of pain

through a medical procedure, the less likely the governmental restraint

will be upheld. The rationale behind Glucksberg is much the same. An

absolute criminal bar to the use of marijuana includes specifically

personal concerns of bodily autonomy coupled with the personal desire

to mitigate if not alleviate needless physical suffering. These are grave

interests which favor the individual.

The Washington Supreme Court went on to hold the following: (1) “[t]he

privileges and immunity clause of the Washington Constitution does not provide

greater protection than the Fourteenth Amendment of the Federal Constitution

in the area of drug classification”; (2) the challenged statute was “appropriately

analyzed under a rational basis test”; (3) the plaintiff failed to show that the

legislature’s decision regarding its classification of marijuana was “arbitrary or

84. Herman v. State, 8 Ind. 545, 548-49, 558-59, 567 (Ind. 1855).

85. Id. at 545.

86. Id. at 563-64.

87. 940 P.2d 604 (Wash. 1997) (en banc).

88. Id. at 606-07, 613-14; see also W

ASH. REV. CODE § 69.50.204 (2012).

89. Seeley, 940 P.2d at 627 (Sanders, J., dissenting).

2013] MARIJUANA AND STRICT SCRUTINY 539

obsolete”; and (4) “frequent recurrence to [the] fundamental principles clause [of

the Washington Constitution] does not create a right to use marijuana for medical

treatment free from the lawful exercise of government police power.”

Although

this holding was a blow to the medical marijuana movement, the court’s

discussion of bodily autonomy is helpful to illustrate the states’ current

understanding of Supreme Court precedent as well as the growing trend in state

and federal court to recognize bodily autonomy as a right guaranteed by law in

the United States.

C. Part I Conclusion A Bodily Autonomy Right

These cases indicate the willingness and trend of the judiciary in recognizing

the right of an individual to control his or her own body. It is as the court stated

in Abigail Alliance for Better Access to Developmental Drugs v. von

Eschenbach

: “A right of control over one’s body has deep roots in the common

law.”

The United States Supreme Court has gone so far as to recognize a

bodily autonomy right in dicta,

and it should now fully recognize bodily

autonomy as a fundamental right.

II. MARIJUANA’S PLACE WITHIN A BODILY AUTONOMY RIGHT

The focus of this section is to determine if marijuana use falls in the

proposed bodily autonomy right. It is important to note at the outset that Part II

is not discussing the test for strict scrutiny. Instead, Part II seeks to establish that

marijuana should be included in the proposed bodily autonomy fundamental right

by comparing marijuana to alcohol and tobacco.

A. History

When analyzing issues, courts often look at the history of the issue in terms

of the United States

and global

history. Also, courts analogize the issue

currently being addressed to similar ones that past court decisions have already

resolved.

Therefore, in determining if marijuana use would fall under the

90. Id. at 622-23 (majority opinion).

91. 445 F.3d 470 (D.C. Cir. 2006).

92. Id. at 480.

93. See, e.g., Winston v. Lee, 470 U.S. 753, 767 (1985); Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833, 835 (1992).

94. See Carcieri, supra note 4, at 311-23.

95. See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (establishing the well-

known legal principle of stare decisis indicates that courts should generally respect the holdings

of prior court cases).

96. See Davidson v. Nichols, 93 Mass. (II Allen) 514, 515 (Mass. 1866) (citing Vaughan v.

Menlove, 132 Eng. Rep. 490 (Ct. Com. Pl. 1837)) (illustrating the idea that U.S. courts sometimes

look outside the U.S. for guidance).

97. See generally Marbury, 5 U.S. (1 Cranch) at 137 (establishing the principle of judicial

540 INDIANA LAW REVIEW [Vol. 46:529

proposed bodily autonomy right, a discussion of the history, both legal and

otherwise, of tobacco, alcohol, and marijuana provides some important insight.

1. Tobacco.—A review of the history of tobacco use and cultivation in the

United States reveals a crop and pastime closely aligned with the American

tradition and experience. Tobacco production and use was widespread among

Native Americans before the arrival of Europeans.

Smoking tobacco played

religious or social purposes for some Native Americans.

During the 1700s, the

demand for tobacco from Europe and the rest of the world fueled the agrarian

economies of southern U.S. states like Georgia.

100

Approximately 1.1 billion people today currently use tobacco—one third of

the adult population.

101

The World Health Organization reports tobacco use to

be the leading preventable cause of death worldwide, estimating it currently

causes nearly six million deaths per year.

102

This is despite the fact smoking rates

among adults in the United States fell by half from 1965 to 2006, from 42% to

21%.

103

The U.S. Congress has never attempted to enact a nationwide tobacco

smoking ban. In the United States, federal law indicates individuals must be

eighteen to purchase and consume tobacco, but four states have increased the

minimum age to nineteen.

104

Tobacco has played an important role in the development of the United

States, both as a major crop for export

105

and a vice,

106

although its use has

dropped recently, most likely due to the prevalence of anti-tobacco campaigns.

107

Like tobacco, marijuana has played an important role in United States history due

to its status as a cash crop,

108

not to mention its medical

109

and personal uses.

review in terms of reviewing legislative action).

98. T

OBACCO USE BY NATIVE NORTH AMERICANS 3-8 (Joseph C. Winter ed., 2000).

99. Id.

100. P

AUL S. BOYER ET AL., THE ENDURING VISION: A HISTORY OF THE AMERICAN PEOPLE 64

(6th ed. 2009).

101. S

MOKE: A GLOBAL HISTORY OF SMOKING 26 (Sander L. Gilman & Zhou Xun eds., 2004).

102. W

ORLD HEALTH ORG., WHO REPORT ON THE GLOBAL TOBACCO EPIDEMIC, 2011, at 8

(2011), available at whqlibdoc.who.int/publications/2011/9789240687813_eng.pdf.

103. A

M. CANCER SOC’Y, CANCER FACTS & FIGURES 2010, at 42 (2010), available at

http://www.cancer.org/acs/groups/content/@nho/documents/document/acspc-024113.pdf.

104. Brock Parker, Raising the Bar for Teens, Tobacco, B

OSTON.COM (June 7, 2012),

http://www.boston.com/news/local/massachusetts/articles/2012/06/07/raising_the_barfor_teenst

obacco/ (listing Alabama, Alaska, New Jersey, and Utah as the four states having a higher minimum

age for purchasing tobacco).

105. O

AKLEY RAY & CHARLES KSIR, DRUGS, SOCIETY, AND HUMAN BEHAVIOR 266 (8th ed.

1999).

106. Id. at 284-85.

107. B

RIAN KING ET AL., CTRS. FOR DISEASE CONTROL & PREVENTION, VITAL SIGNS: CURRENT

CIGARETTE SMOKING AMONG ADULTS AGED $ 18 YEARS—UNITED STATES, 2005-2010, 60

ORBIDITY & MORALITY WKLY. REP. 1207, 1208-09 (2011), available at http://www.cdc.

gov/mmwr/pdf/wk/mm6035.pdf.

108. J

EAN M. RAWSON, CONG. RESEARCH SERV., RL32725, HEMP AS AN AGRICULTURAL

2013] MARIJUANA AND STRICT SCRUTINY 541

Alcohol has also served valuable functions in human society.

2. Alcohol.—A review of the history of alcohol illustrates that alcohol has

also been an important aspect of culture and preservation for the United States,

not to mention for the entirety of the human species.

110

The earliest evidence of

alcohol comes from China where wine jars date to about 7000 B.C.

111

Alcohol

played a major part in colonial America as drinking beer and wine was often

safer than drinking water.

112

People of all ages

113

and both sexes drank alcohol

during this time.

114

Prohibition was instituted with the Eighteenth Amendment to the United

States Constitution in 1919.

115

This amendment prohibited “the manufacture,

sale, or transportation of intoxicating liquors within, the importation thereof into,

or the exportation thereof from the United States.”

116

Congress passed the

Volstead Act to enforce Prohibition,

117

but most large cities were uninterested in

enforcing the legislation, leaving the job to the federal government.

118

Although

alcohol consumption did decline during Prohibition, there was a dramatic rise in

organized crime in the larger cities, whose organized crime syndicates used

alcohol sales as a source of revenue.

119

Prohibition became unpopular during the

Great Depression as the repeal movement emphasized that repeal would generate

enormous sums of tax revenue and weaken the base of organized crime.

120

The

Twenty-First Amendment to the U.S. Constitution repealed nationwide

prohibition in 1933,

121

but prohibition survived for a while in a few southern and

border states.

122

COMMODITY 2 (2005), available at http://www.fas.org/sgp/crs/RL32725.pdf.

109. See J

ACK HERER, THE EMPEROR WEARS NO CLOTHES 2 (11th ed. 2000) (“[M]arijuana and

hashish extracts were the first, second, or third most-prescribed medicines in the United States from

1842 until the 1890s.”).

110. Bert L. Vallee, Alcohol in the Western World: A History, 278 S

CI. AM. 80, 80-85 (June

1998), available at http://www.beekmanwine.com/prevtopx.htm.

111. P

ATRICK E. MCGOVERN, ANCIENT WINE: THE SEARCH FOR THE ORIGINS OF VINICULTURE

314 (2003).

112. Vallee, supra note 110, at 80-85.

113. Id.

114. E

D CREWS, DRINKING IN COLONIAL AMERICA, COLONIAL WILLIAMSBURG J., available at

http://www.history.org/foundation/journal/holiday07/drink.cfm.

115. U.S.

CONST. amend. XVIII, repealed by U.S. CONST. amend. XXI.

116. Id. § 1.

117. Volstead Act of 1919, H.R. 6810, 66th Cong. (1919).

118. Jeffrey A. Miron,

Alcohol Prohibition, EH.NET (Feb. 1, 2010, 5:21 PM),

http://eh.net/encyclopedia/article/miron.prohibition.alcohol; see generally T

HOMAS R. PEGRAM,

ATTLING DEMON RUM: THE STRUGGLE FOR A DRY AMERICA, 1800-1933 (1998) (discussing at

length prohibition era U.S. issues).

119. Miron, supra note 118; see also P

EGRAM, supra note 118, at 85-85, 167, 174-75.

120. Miron, supra note 118; see also P

EGRAM, supra note 118, at 183-85.

121. U.S.

CONST. amend. XXI.

122. Miron, supra note 118; see also P

EGRAM, supra note 118, at 186.

542 INDIANA LAW REVIEW [Vol. 46:529

It is currently legal for any individual twenty-one or older to drink alcohol

in the United States, although restrictions exist regarding what one may do while

intoxicated.

123

“[E]xcessive alcohol use [is] the [third] leading lifestyle-related

cause of death” for people in the United States.

124

It is easy to see an analogy between the prohibition of marijuana and the

Eighteenth Amendment. Both regulate private conduct, arguably for primarily

moral reasons, and the arguments for the repeal of both are similar: decrease

crime and generate taxes.

125

The decrease in revenues seen by organized crime

after Prohibition ended was indeed a devastating blow to these organizations’

abilities to perpetuate criminal activities, a blow that was lessened when these

gangs turned to other illicit drugs, including marijuana, for a revenue stream.

126

Simple economics tells us that where there is a demand, there will arise a supply

for that demand.

3. Marijuana.—Marijuana’s first recorded use as an intoxicant was in 2737

B.C.

127

It was recorded by the Chinese emperor of the time, Shen Nung.

128

The

uses of marijuana, both social and medical, spread throughout Asia, North

Africa, and the Muslim world, eventually reaching Europe, the Caribbean, and

Central and South America.

129

In 1619, the Jamestown colony passed a law “making it illegal not to grow

hemp,”

130

a genetically distinct variety of Cannabis Sativa L. characterized by its

low level of the psychoactive chemical tetrahrydocannabinol (“THC”).

131

Therefore, it must be noted that the current United States prohibition of

marijuana, which includes hemp, is a complete 180-degree turn from how some

early colonists approached marijuana, at least in terms of cultivation. In the

United States in the 1800s, marijuana was occasionally prescribed as a medicine

for diverse ailments and only rarely used as an intoxicant.

132

The properties of marijuana were not the real reason it was illegalized.

123. See, e.g., IND. CODE § 9-30-5 (2012) (discussing the offense of “Operating a Vehicle

While Intoxicated”).

124. Alcohol Use and Health, C

TRS. FOR DISEASE CONTROL & PREVENTION (last updated Oct.

1, 2012), http://www.cdc.gov/alcohol/fact-sheets/alcohol-use.htm.

125. See H

ERER, supra note 109, at 39, 59.

126. G

LOBAL COMM’N ON DRUG POL’Y, WAR ON DRUGS 4 (June 2011) [hereinafter GCDP

EPORT], available at http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/

Global_Commission_Report_English.pdf.

127. R

AY & KSIR, supra note 105, at 404-05.

128. Id. at 404.

129. M

ARTIN BOOTH, CANNABIS: A HISTORY 77 (2003) (quoting BAYARD TAYLOR, A JOURNEY

CENTRAL AFRICA (1854)).

130. Affidavit of David P. West, Ph.D., ¶ 34, United States v. White Plume, 447 F.3d 1067,

1072 (8th Cir. 2006) (No. CIV 02-5071).

131. Affidavit of Burton L. Johnson, Ph. D., ¶ 3, Monson v. Drug Enforcement Admin., 522

F. Supp. 2d 1188 (D.N.D. 2007) (No. 4:07-cv-00042).

132. R

ICHARD J. BONNIE & CHARLES H. WHITEBREAD II, THE MARIHUANA CONVICTION: A

ISTORY OF MARIHUANA PROHIBITION IN THE UNITED STATES 117 (1974).

2013] MARIJUANA AND STRICT SCRUTINY 543

Rather, in large part, it was the use of marijuana by Mexican immigrants bringing

cheap labor into the American South and Southwest, and later by African-

Americans, that fueled the hatred of marijuana.

133

The government, through the

Federal Bureau of Narcotics (“FBN”), set about vilifying marijuana

systematically in the 1930s.

134

This included propaganda movies and fabricated,

falsified, or embellished news articles directed at making marijuana seem

connected to crime, perversion, and mental instability.

135

The head of the FBN, Harry J. Anslinger, was intricately involved in this

vilification process.

136

He even presented horror stories about marijuana to

Congress at the preliminary congressional hearings of the Marihuana Tax Act in

April 1937.

137

The Marihuana Tax Act provided that certain individuals and

entities growing, using, or manufacturing marijuana must pay a tax.

138

Failure

to do so would result in stiff fines and lengthy prison sentences.

139

Some argue

the Marihuana Tax Act was a ploy on the part of various businessmen in the

timber industry to reduce the production of hemp, which they had concluded was

far better for paper production than wood pulp.

140

The American Medical

Association opposed the act because it was imposed on physicians who wished

to prescribe cannabis.

141

After the Marihuana Tax Act passed, propaganda to vilify marijuana

continued despite studies during the time suggesting such claims of villainy were

false.

142

An FBN publication in 1965 indicated, “[n]ever let anyone persuade you

to smoke even one marijuana cigarette. It is pure poison.”

143

In 1969, the

Marihuana Tax Act was declared constitutionally invalid because the law

functioned as prohibition in the guise of taxation.

144

The 1970s saw a general attempt at legalizing marijuana.

145

Several states

decriminalized marijuana in the 1970s after President Nixon’s administrative

133. BOOTH, supra note 129, at 77.

134. Id.

135. Id.

136. Id.

at 154.

137. Id.

138. Marihuana Tax Act of 1937, Pub. L. No. 238, 50 Stat. 551 (1937).

139. Id.

140. L

AURENCE FRENCH & MAGDALENO MANZANÁREZ, NAFTA & NEOCOLONIALISM:

COMPARATIVE CRIMINAL, HUMAN & SOCIAL JUSTICE 129 (2004).

141. Taxation of Marihuana: Hearings on H.R. 6385 Before the H. Comm. on Ways and

Means, 75th Cong. 1 (1937) (Statement of Dr. William C. Woodward, Legislative Counsel, Am.

Med. Ass’n), available at http://www.druglibrary.org/Schaffer/hemp/taxact/woodward.htm.

142. L

ESTER GRINSPOON, MARIHUANA RECONSIDERED 17-20 (1971).

143. B

OOTH, supra note 129, at 224.

144. Leary v. United States, 395 U.S. 6, 54, 115-16 (1969).

145. N

AT’L COMM’N ON MARIHUANA & DRUG ABUSE, MARIHUANA: A SIGNAL OF

MISUNDERSTANDING, at ch. 5 (1972), available at http://www.druglibrary.org/schaffer/library/

studies/nc/ncmenu.htm.

544 INDIANA LAW REVIEW [Vol. 46:529

commission on marijuana recommended decriminalization as national policy.

146

However, Nixon himself was convinced drugs and crime went hand-in-hand, and

he established the Drug Enforcement Agency, giving it vast powers to combat the

spread of drugs.

147

It was also during the Nixon Administration that the

Comprehensive Drug Abuse Prevention and Control Act of 1970 classified

marijuana, alongside heroin and LSD, as a Schedule I drug, effectively

illegalizing it.

148

Marijuana is still classified as a Schedule 1 drug, which, in layman’s terms,

means it is illegal.

149

Despite marijuana’s illegal status, a 2009 national survey

conducted by the U.S. Department of Health and Human Services reported that

more than 11% of individuals surveyed admitted to having used marijuana in the

year before they were surveyed.

150

This translates to more than 27.7 million U.S.

citizens using marijuana in the last year, or more than one in ten citizens. The

same survey indicated almost 7% of the U.S. population uses marijuana on a

monthly basis.

151

In 2005, U.S. citizens consuming marijuana comprised 12.6% of the

population between the ages of fifteen and sixty-four.

152

In 2009, more than half

of individuals aged eighteen to forty-nine indicated they had consumed marijuana

in their lives.

153

The total number of individuals who admitted to having used

marijuana in their lifetimes was over 105 million in 2009, or 41.7% of the

population.

154

Marijuana is currently “the most commonly used illicit drug” in

the U.S.

155

As of the writing of this Note, fourteen states allow the possession of a small

quantity for personal use to be treated as a civil infraction, which means there is

no arrest or criminal record, or less.

156

Some states treat second offenses for

146. Id.

147. B

OOTH, supra note 129, at 241.

148. Controlled Substances Act of 1970, 21 U.S.C. § 801 (1970).

149. 21 U.S.C. § 812(c)(10) (2006).

150. U.S.

DEP’T OF HEALTH & HUMAN SERVS., NATIONAL SURVEY ON DRUG USE AND HEALTH

(2009) [hereinafter DEP’T OF HEALTH SURVEY], available at http://www.icpsr.umich. edu/icpsrweb/

SAMHDA/studies/29621.

151. Id.

152. U.N.

OFFICE ON DRUGS & CRIME, 2007 WORLD DRUG REPORT, at 244, U.N. Sales No.

E.07.X1.5 (2007), available at http://www.unodc.org/pdf/research/wdr07/WDR_ 2007.pdf.

153. D

EP’T OF HEALTH SURVEY, supra note 150.

154. Id.

155. Office of Nat’l Drug Control Policy,

Marijuana Legalization (Oct. 2010), http://www.

whitehouse.gov/sites/default/files/ondcp/Fact_Sheets/marijuana_legalization_fact_sheet_3-3-

11.pdf.

156. The thirteen states are: (1) Alaska (see A

LASKA STAT. § 11.71.010 (2011) (“misconduct

. . . in the first degree”); id. § 11.71.160 (Schedule III(A))); (2) California (see C

AL. HEALTH &

AFETY CODE § 11054(d)(13) (West 2012) (Schedule I); id. § 11357 (“[u]nauthorized

possession”)); (3) Colorado (see C

OLO. REV. STAT. § 18-18-203(c)(XXIII) (2012) (THC as

Schedule I); id. § 18-18-406 (penalties for possession)); (4) Connecticut (see C

ONN. GEN. STAT.

2013] MARIJUANA AND STRICT SCRUTINY 545

possession more harshly,

157

and the majority of states treat the sale of any

quantity of marijuana as a crime.

158

Several states have decriminalized at least

some kind or kinds of marijuana possession.

159

On November 6, 2012, voters in

Colorado and Washington legalized recreational marijuana by referendum.

160

However, in 2005, the U.S. Supreme Court indicated the federal government has

the final say regarding legality of marijuana due to the Commerce Clause,

161

and

the DEA has said its enforcement policy regarding marijuana remains the

same.

162

In October 2011, Gallup conducted a poll that found 50% of Americans favor

legalizing marijuana use.

163

This was the first instance of hard data supporting

the assertion that half of the public favors legalization,

164

and this shift arguably

§ 21a-279 (2012)); (5) Maine (see ME. REV. STAT. tit. 17-A § 1102 (2012) (Schedule Z); id. §

1107-A (“[u]nlawful possession”)); (6) Massachusetts (see M

ASS. GEN. LAWS ch. 94C, §

32L (2012) (possession of one ounce or less)); (7) Minnesota (see M

INN. STAT. § 152.02(h) (2012)

(Schedule I); id.

§ 152.027 (possession and sale)); (8) Mississippi (see MISS. CODE ANN. § 41-29-

113(c)(14) (2012) (Schedule 1); id.

§ 41-29-139 (possession for possession, sale, etc.)); (9)

Nebraska (see N

EB. REV. STAT. § 28-405(c)(10)-(15) (2012) (Schedule I); id. § 28-416 (penalties));

(10) Nevada (see N

EV. REV. STAT. §453.336 (2009) (penalties for possession)); (11) New York (see

N.Y.

PUB. HEALTH LAW § 3306(d)(13) (McKinney 2013); N.Y. PENAL LAW § 221.05 (McKinney

2013) (“[u]nlawful possession”)); (12) North Carolina (see N.C.

GEN. STAT. § 90-94 (2012)

(Schedule VI); id. § 90-95 (b)(2), (d)(4) (penalties)); (13) Ohio (see O

HIO REV. CODE ANN. §

3719.41(C)(19) (West 2013) (Schedule I); id. § 3719.99 (“[p]enalties”)); and (14) Oregon (see O

EV. STAT. § 475.864 (20011) (unlawful possession)).

157. E.g., Colorado (see C

OLO. REV. STAT. § 18-18-203(c)(XXIII) (2012) (THC as Schedule

I); id. § 18-18-406 (penalties for possession)).

158. E,g., Connecticut (see C

ONN. GEN. STAT. § 21a-279 (2012)), and California (see CAL.

EALTH & SAFETY CODE § 11054(d)(13) (West 2013); id. § 11357 (“[u]nauthorized possession”)).

159. E.g., Connecticut (see C

ONN. GEN. STAT. § 21a-279 (2012)), and Colorado (see COLO.

EV. STAT. § 18-18-203(c)(XXIII) (2012) (THC as Schedule I)).

160. Gov. Hickenlooper Signs Amendment 64 Proclamation, Creates Task Force to

Recommend Needed Legislative Actions, C

OLO. (Dec. 10, 2012), http://www.colorado.gov/cs/

Satellite/GovHickenlooper/CBON/1251634887823; Smoke the Vote, NORML,

normal.org/about/smoke-the-vote#co (last visited Mar. 26, 2013); Joel Connelly, Washington

Passes Measure to Legalize, Regulate, and Tax Marijuana, S

EATTLE PI (Nov. 6, 2012, 9:02 PM),

http://blog.seattlepi.com/seattlepolitics/2012/11/06/initiative-502-passes-to-legalize-regulate-and-

tax-marijuana/.

161. Gonzales v. Raich, 545 U.S. 1, 15, 32-33 (2005).

162. Aaron Smith, Marijuana Legalization Passes in Colorado, Washington, CNN

MONEY

(Nov. 8, 2012, 11:46 AM), http://money.cnn.com/2012/11/07/news/economy/marijuana-

legalization-washington-colorado/index.html.

163. Frank Newport, Record-High 50% of Americans Favor Legalizing Marijuana Use,

ALLUP (Oct. 17, 2011), http://www.gallup.com/poll/150149/Record-High-Americans-Favor-

Legalizing-Marijuana.aspx?utm_source=alert&utm_medium=email&utm_campaign=

syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines.

164. Id.

546 INDIANA LAW REVIEW [Vol. 46:529

is the most significant development in the fight for marijuana legalization.

The history of cannabis plants in the United States goes back to its roots in

the colonies. Throughout much of history, marijuana use in the United States

was not a matter of government concern. Only when politics came into play in

the 1930s, and again in the 1970s, with politicians and bureaucrats playing on

racist sentiments and relying on factual fallacies, did marijuana use become

illegal.

165

Studies and surveys show that marijuana users comprise a significant

percentage of U.S. citizens, such as the 2011 Gallup Poll that indicated the

majority of U.S. citizens are in favor of legalizing marijuana.

166

It is the position

of this Note that past and present public opinion indicates the Constitution should

protect an individual’s decision to use marijuana as a bodily autonomy

fundamental right.

B. Comparing the Vices

Although the history of marijuana in the United States creates a strong

argument for its inclusion as a bodily autonomy right, history alone is not enough

to place it under that umbrella. However, a comparison of marijuana’s history

to that of other drugs, most notably the legal vices of alcohol and tobacco,

strengthens the argument. There are three general categories or reasons

examined by this Note for why the government legalizes drugs: (1) impact on

human health and physiology; (2) potential for abuse and dependence; and (3)

relation to crime. This Note will cover marijuana’s relationship to crime when

discussing applying strict scrutiny to marijuana prohibition in Part III. Part III

will also examine health issues related to marijuana use.

1. Health and Physiology.—Tobacco and alcohol—not to mention other

illegal substances and prescription drugs—have a much greater negative effect

on health and physiology than marijuana. “The smoking of cannabis, even long-

term, is not harmful to health . . . . It would be reasonable to judge cannabis as

less of a threat . . . than alcohol or tobacco.”

167

Lester Grinspoon has gone so far

as to say, “Despite its use by millions of people over thousands of years, cannabis

has never caused a death.”

168

This stands in stark contrast to the indisputable fact

that alcohol-related deaths average more than 100,000 per year in the United

States, and tobacco causes more than 400,000 deaths in the United States each

year.

169

It is true that individuals have died while high on marijuana, and likely

some have died because they undertook a task that they should not have

undertaken while high. This Note’s discussion of applying strict scrutiny to

marijuana prohibition will further examine marijuana’s health effects. However,

165. FRENCH & MANZANÁREZ, supra note 140, at 129-30; BOOTH, supra note 129, at 77.

166. Newport, supra note 163.

167. Editional, Deglamorizing Cannabis, 346 L

ANCET 1241 (1995).

168. Lester Grinspoon, Cannabis, the Wonder Drug, in T

HE DRUG LEGALIZATION DEBATE

101-02 (James A. Inciardi ed., 2d ed. 1999) [hereinafter Grinspoon, Wonder Drug].

169. J. Michael McGinnis & William H. Foege, Actual Causes of Death in the United States,

270 J.

AM. MED. ASS’N 2207, 2207-12 (1993).

2013] MARIJUANA AND STRICT SCRUTINY 547

the fact that marijuana is less harmful than the legal vices of alcohol and tobacco,

in part shown by the number of deaths attributed to each of them each year, is an

incredibly strong argument for including marijuana as a bodily autonomy

fundamental right. Finally, since 1969, government-appointed commissions in

five countries, including the United States, have concluded that marijuana’s

dangers had previously been exaggerated and urged their respective countries to

drastically reduce or eliminate penalties related to marijuana.

170

2. Dependence.—The THC that makes marijuana users experience a high

is unlike many other drugs in that it has little addictive potential.

171

The U.S.

Government once concluded that “users of marijuana are less likely to become

dependent on the drug in comparison to alcohol and nicotine.”

172

Dependence

is an important issue, one that is often glossed over. Every year, millions of

dollars are spent on campaigns and services for people to quit consuming

tobacco,

173

and support groups, like Alcoholics Anonymous, are sometimes court-

ordered for those who have become dependent on alcohol to drop their habit.

174

It is true that these programs exist for marijuana users, but they are not as

prevalent as the government-funded anti-smoking campaigns.

175

These programs

may also not be as necessary to help people to quit, as “cannabis appears to have

little addictive potential in the opinion of most experts, particularly when

compared to other common drugs, including caffeine.”

176

Therefore, as

marijuana is not on the same level as alcohol and tobacco in terms of

addictiveness, it seems it would be protected under a bodily autonomy right as

this less addictive nature suggests marijuana will have the following effects: (1)

pose less of a cost for society in terms of quit smoking campaigns; (2) have a

smaller number of habitual users than tobacco and alcohol, making long term

170. See ADVISORY COMM. ON DRUG DEPENDENCE, CANNABIS, HER MAJESTY’S STATIONERY

OFFICE (1968); CANADIAN GOV’T COMM. OF INQUIRY, THE NON-MEDICAL USE OF DRUGS,

NFORMATION CANADA (1970); NAT’L COMM’N ON MARIHUANA AND DRUG ABUSE, MARIHUANA:

A SIGNAL OF MISUNDERSTANDING (1972); WERKGROEP VERDOVENDE MIDDELEN, BACKGROUND

AND

RISKS OF DRUG USE, STAATSUIGEVERIJ (1972); S. STANDING COMM. ON SOCIAL WELFARE,

RUG PROBLEMS IN AUSTRALIA-AN INTOXICATED SOCIETY, AUSTRALIAN GOV’T PUBLISHING SERV.

(1977) [hereinafter Five Countries’ Reports].

171. Robert Gore & Mitch Earleywine, Marijuana’s Perceived Addictiveness: A Survey of

Clinicians and Researchers, in P

OT POLITICS: MARIJUANA AND THE COSTS OF PROHIBITION 176,

184-86 (Mitch Earleywine ed., 2007).

172. I

NST. OF MED., MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE 98 (Janet E.

Joy et al. eds., 1999) [hereinafter IOM

REPORT].

173. Jodie Humphries, Anti-Smoking Programs, EHM (Dec. 11, 2009, 4:29 PM), available

at http://www.executivehm.com/news/anti-smoking-programs/.

174. See Buddy T., How Court-Ordered Alcoholics Anonymous Works, A

BOUT.COM (last

updated Nov. 1, 2011), http://alcoholism.about.com/od/dui/a/How-Court-Ordered-Alcoholics-

Anonymous-Works.htm.

175. Melissa Weinman, Anti-Smoking Money Ill-Spent, R

ED & BLACK (Feb. 13, 2008, 12:00

AM), http://redandblack.com/2008/02/13/anti-smoking-money-ill-spent/.

176. Gore & Earleywine, supra note 171, at 185.

548 INDIANA LAW REVIEW [Vol. 46:529

health effects and costs associated with marijuana use less than those for tobacco

and alcohol; and (3) result in fewer violent crimes perpetrated for the purpose of

obtaining marijuana for personal use.

Part II Conclusion: Marijuana’s Position Under an Autonomy Umbrella

Marijuana’s history in the United States, and in human history in a broader

sense, parallels the history of tobacco and alcohol. For instance, both tobacco

and hemp were cash crops in the early United States, and both alcohol and

marijuana have been the object of a government prohibition that has given

criminal entities revenue through the black market sale of the substances during

the prohibition. These similarities suggest that the law should treat alcohol,

tobacco, and marijuana similarly. The similarities further suggest a bodily

autonomy right should cover marijuana because alcohol

177

and tobacco use likely

already are protected under a privacy or bodily autonomy argument.

Furthermore, as alcohol and tobacco—which are proven to be generally more

harmful to health and more addictive than marijuana when consumed—are legal

for individuals to choose to consume, it is reasonable to think that a bodily

autonomy right would protect marijuana consumption in the same way.

III.

STRICT SCRUTINY APPLIED

If a court were to apply strict scrutiny to the federal prohibition of marijuana

use, the federal government would have to show a compelling interest in

prohibiting marijuana use as well as demonstrate that complete prohibition of

marijuana is narrowly tailored to further that interest.

178

A. Compelling Interest

The first aspect of strict scrutiny is the government’s responsibility to show

that it has a compelling interest in restricting the right.

179

Examples of

compelling government interests the judiciary has accepted as “compelling”

include protecting children from abuse

180

and preventing voter fraud.

181

Three

interests the federal government could give to warrant marijuana prohibition are

177. See Herman v. State, 8 Ind. 545, 555 (Ind. 1855).

178. See Roe v. Wade, 410 U.S. 113, 155 (1973); Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 539, 541 (1942).

179. Roe, 410 U.S. at 155; see also Skinner, 316 U.S. at 541.

180. New York v. Ferber, 458 U.S. 747, 756-57 (1982).

181. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam).

2013] MARIJUANA AND STRICT SCRUTINY 549

as follows: marijuana use is immoral;

182

marijuana use is related to crime;

183

and

marijuana use has negative effects on health.

184

1. Morality.—The government could attempt to prohibit marijuana using

morality as its compelling interest.

185

It is important to note that courts have been

at least skeptical of purely moral interests of the government—i.e., those interests

that have only to do with enforcing what is “right”—comprising a compelling

interest in terms of strict scrutiny.

186

It is the position of this Note that any

United States government entity, whether state or federal, enforcing any “moral”

interest with no tangible effect on issues generally regulated by the government,

such as matters of contract and property, is overreaching as a violation of

separation of church and state. The United States is founded on ideas of personal

liberty, including the right to decide our own religion and morals.

187

Whether the

government should be permitted to assert morality as an interest at all in terms

of satisfying due process tests is beyond the scope of this Note. Here, it is

sufficient to say that a purely moral interest in prohibiting marijuana would, in

all likelihood, fail to comprise a compelling interest, as the competing interest of

bodily autonomy is arguably one of the most important basic human rights of any

individual.

188

2. Crime and Use.—The government could also argue the prohibition of

marijuana is warranted because the government has a compelling interest in

controlling crime,

189

and due to marijuana’s relation to crime, decriminalization

of marijuana will result in an increased number of users as well as increased

crime. A 2003 study examines several states where marijuana had been

decriminalized—meaning there was a reduction of the penalties imposed for

simple possession—found that this decriminalization did increase use among

high school students.

190

However, the increase was only 2%.

191

Furthermore,

studies in jurisdictions that decriminalized marijuana use in the 1970s showed

182. See Washington v. Glucksberg, 521 U.S. 702, 772 (1997) (discussing the six state

interests of (1) preserving life; (2) preventing suicide; (3) avoiding the involvement of third parties

and use of arbitrary, unfair, or undue influence; (4) protecting family members and loved ones; (5)

protecting the integrity of the medical profession; and (6) avoiding future movement toward

euthanasia and other abuses).

183. See Moran v. Burbine, 475 U.S. 412, 426 (1986) (discussing the compelling interest in

finding, convicting, and punishing those who violate the law).

184. Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975).

185. See Glucksberg, 521 U.S. at 772.

186. See Lawrence v. Texas, 539 U.S. 558, 578-579 (2003).

187. See U.S.

CONST. amend. I.

188. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more sacred,

or is more carefully guarded by the common laws than the right of every individual to the

possession and control of his own person.”).

189. See Moran v. Burbine, 475 U.S. 412, 426 (1986).

190. Rosalie Licardo Pacula et al., Marijuana Decriminalization: What Does It Mean in the

United States? 8-9, 17 (Nat’l Bureau of Econ. Research, Working Paper No. 9690, 2004).

191. Id. at 17.

550 INDIANA LAW REVIEW [Vol. 46:529

very little effect on use patterns.

192

Regarding marijuana’s relationship to crime,

marijuana is the least likely out of marijuana, cocaine, and heroin to generate

criminal activities because (1) the method of dealing marijuana is discreet; (2)

very little marijuana is required to get high; and (3) a marijuana high typically

does not trigger violence.

193

These, and possibly other factors, suggest “[m]aking

marijuana legally available to adults on more or less the same terms as alcohol

would tend to reduce crime.”

194

The flip side of the crime discussion is that federal and state governments are

spending huge sums of money to enforce the prohibition of marijuana. A study

in 2004 claimed that Alaska was spending around $25 million per year to enforce

marijuana prohibition laws.

195

A separate study in 2003 concluded that

Massachusetts spends around $120.6 million per year on marijuana prohibition

laws.

196

On a national level, a report in 2004 estimated that the national criminal

justice system could spend as much $7.6 billion enforcing marijuana laws in a

year.

197

This is in spite of the fact that the Global Commission on Drug Policy,

which included individuals such as former Secretary General of the United

Nations, Kofi Annan, indicated, “The global war on drugs has failed, with

devastating consequences for individuals and societies around the world . . . .

End the criminalization, marginalization and stigmatization of people who use

drugs but who do no harm to others.”

198

In light of this, the large sums of money

being spent by U.S. jurisdictions would be better spent elsewhere, especially in

a time when most state governments are struggling to balance their books, and

the federal government faces the prospect of further credit score downgrades due

to out of control federal debt in the trillions of dollars.

Therefore, although government prevention of crime is admittedly a

compelling government interest, decriminalizing marijuana would better serve

that and other interests much more effectively than continued government

192. L. Johnson et al., Marijuana Decriminalization: The Impact on Youth 1975-1980, INST.

FOR SOC. RES., Occasional Paper Series: Paper 13 (1981); Clifford F. Thies & Charles A. Register,

Decriminalization of Marijuana and the Demand for Alcohol, Marijuana and Cocaine, 30 S

OC.

CI. J. 385, 399 (1993).

193. David A. Boyum & Mark A. R. Kleiman, Substance Abuse Policy from a Crime-Control

Perspective, in C

RIME: PUBLIC POLICIES FOR CRIME CONTROL 331, 341 (James Q. Wilson & Joan

Petersilia eds., 2002).

194. Id. at 344.

195. Scott W. Bates, The Economic Implications of Marijuana Legalization in Alaska,

LASKANS FOR RTS. & REVENUES, at iv-v (2004), http://www.prohibitioncosts.org/wp-content/

resources/FinalBatesreport.pdf.

196. Jeffrey A. Miron, The Budgetary Implications of Marijuana Legalization in

Massachusetts. C

HANGE THE CLIMATE 1, 11 (Aug. 2003), http://www.changetheclimate.org/bu-

study/mass_budget.pdf.

197. J

ON B. GETTMAN, CRIMES OF INDISCRETION: MARIJUANA ARRESTS IN THE UNITED STATES,

AT’L ORG. FOR THE REFORM OF MARIJUANA LAWS 115 (2004), available at http://norml.

org/pdf_files/NORML_Crimes_of_Indiscretion.pdf.

198. GCDP

REPORT, supra note 126, at 2.

2013] MARIJUANA AND STRICT SCRUTINY 551

prohibition.

3. Health.—Again, the health aspects of marijuana use come into play

because the government could argue it has a compelling interest in protecting

public health, and smoking marijuana can be harmful.

199

The Supreme Court has

recognized a compelling interest for public health, but this compelling interest

is attached to the states’ police power

200

and may not be applicable to the federal

government.

It is important to note there are methods for using marijuana other than

smoking it.

201

These include vaporizers, edibles, and alcohol tinctures.

202

Ingesting marijuana does not have any of the smoke-related effects on the lungs

that smoking marijuana has. This is arguably the primary health concern

regarding marijuana use. The American College of Physicians has indicated

marijuana has the potential to be used safely under appropriate conditions.

203

Furthermore, marijuana appears to have a therapeutic benefit, even according to

the government, as evidenced by the successful patent application.

204

Again, as earlier, it must be noted that government-appointed commissions

in the United States, Germany, Canada, the UK, and Australia have reviewed the

scientific evidence and concluded that marijuana’s dangers had previously been

exaggerated.

205

These commissions urged their respective countries to drastically

reduce or eliminate penalties related to marijuana.

206

The existence of these

studies is a strong argument against any government assertion that maintaining

public health would be a compelling interest for marijuana prohibition.

Furthermore, there has never been a recorded death attributed to marijuana

overdose,

207

but deaths related to the two primary legal vices in the United States,

alcohol and tobacco, approach 100,000 and 400,000 lives, respectively, each

year.

208

Again, any argument by the government that ensuring public health

199. See Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (finding that states have a

compelling interest in professional practices within state borders).

200. Id.

201. See, e.g., Marijuana Tincture, P

ATIENTS FOR MED. CANNABIS, http://patients4medical

marijuana.wordpress.com/medical-use-of-cannabis-video/marijuana-tincture/ (last visited Mar. 26,

2013) (An alcohol tincture is a solution of alcohol or of alcohol and water, containing animal,

vegetable, or chemical drugs. In this instance, the THC from the marijuana is transferred from the

plant itself into the alcohol.).

202. Id.

203. T

IA TAYLOR, AM. COLL. OF PHYSICIANS, SUPPORTING RESEARCH INTO THE THERAPEUTIC

ROLE OF MARIJUANA 1 (2008), available at http://www.acp.online.org/advocacy/where_we_stand/

other_issues/medmarijuana.pdf.

204. Cannabinoids as Antioxidants and Neuroprotectants, U.S. Patent No. 6,630,507 (filed

Feb. 2, 2001) (issued Oct. 7, 2003) (patent rights assigned to the U.S. Department of Health and

Human Services).

205. See supra text accompanying note 170.

206. Id.

207. Grinspoon, Wonder Drug, supra note 168, at 101-02.

208. Id.; McGinnis & Foege, supra note 169, at 2207-12.

552 INDIANA LAW REVIEW [Vol. 46:529

would be a compelling interest to allow the government to prohibit marijuana use

is undermined by the fact that there were no deaths in the United States directly

attributed to marijuana use in 2009.

209

Lester Grinspoon, who was later an Associate Professor Emeritus in

Psychiatry at Harvard Medical School, declared in 1971, “The single greatest risk

encountered by the user of marihuana in any state in this country is that of being

apprehended as a common criminal, incarcerated, and subjected to untold

damage to his social life and career.”

210

Any health argument for a compelling

interest made by the United States federal government would likely fail as

marijuana simply is not as harmful as the federal government once claimed, and

it is less harmful than alcohol and tobacco, both of which are legal at a certain

age in the United States.

4. Conclusion: Compelling Interest.—The facts simply do not support the

position that the U.S. Government has a compelling interest in prohibiting

marijuana use. Any argument related to morality made by the U.S. Government

will at least be met with harsh skepticism from the judicial wing; allowing such

a morality argument would send a damaging message to a federal government

that has always been constrained by the notion of separation of church and state.

Furthermore, it is difficult for a financially stretched and vastly unpopular

legislative branch of the federal government to even voice an argument for the

regulation of marijuana use due to its “relationship to crime” when any

relationship that exists between the two is likely a direct effect of the prohibition

the government would be defending. Finally, scientific evidence suggests

marijuana is simply not as dangerous as the U.S. Government once claimed,

especially when compared to other substances the government allows adult

individuals the choice to use. If any compelling government interest exists in

prohibiting marijuana use in the United States, it is not related to morality, an

independent cause of crime, or marijuana’s health effects.

B. Narrowly Tailored

Even if the government can scrape up a compelling interest for infringing on

the bodily autonomy right through marijuana prohibition, it must also

demonstrate the current law of a complete marijuana prohibition is narrowly

tailored to meet whatever compelling interest is cobbled together.

211

There are

two reasons that any government attempt in this regard would fail: (1) the

current prohibition on marijuana use also prohibits the growing of industrial

hemp; and (2) the current prohibition on marijuana use also prohibits the use of

marijuana as a medical remedy.

1. Industrial Hemp.—Industrial hemp has been an important crop for the

209. Annual Causes of Death in the United States, DRUGWARFACTS.ORG, http://www.

drugwarfacts.org/cmc/Cause_of_Death#sthash4eMkbk42.dpbs (last visited Mar. 26, 2013); About

Marijuana, NORML, http://norml.org/marijuana (last visited Mar. 26, 2013).

210. Grinspoon, Wonder Drug, supra note 168, at 2.

211. See Roe v. Wade, 410 U.S. 113, 155 (1973).

2013] MARIJUANA AND STRICT SCRUTINY 553

majority of the United States’s history.

212

In 1619, the Jamestown Colony passed

a law making it illegal not to grow hemp.

213

Colonies in Massachusetts and

Connecticut passed similar laws in 1631 and 1632.

214

Hemp was also produced

on a massive basis for the war effort during World War I and World War II.

215

From the colonial period until the middle of the nineteenth century, hemp

was a major crop in the United States due to its use as fabric, twine, and paper.

216

Despite the rise of the use of cotton due to technological advances,

217

farmers in

the United States continued to grow hemp as a rotation crop because it is a

natural herbicide.

218

Over the last seventy years, federal agencies’ interpretations of narcotics

laws, alongside the policies implemented in reliance on those interpretations,

have completely obstructed the cultivation of industrial hemp such that domestic

crops of hemp have not been grown in the United States since 1958.

219

Industrial

hemp contains only a fraction of the amount of THC that the drug marijuana

contains.

220

In fact, hemp plants contain approximately less than .03% THC

compared to the drug marijuana, which contains 3-15%.

221

Today, hemp is cultivated in more than thirty countries,

222

and it can be

called a cash crop for several reasons. First, hemp has twice the “tensile

strength” of cotton,

223

but it does not require the harmful chemical pesticides

needed by cotton.

224

Second, hemp paper lasts for more than two

centuries—three times longer than wood pulp paper—and hemp paper does not

yellow as it ages.

225

Also, wood pulp paper requires the use of nonrecyclable

sulfuric acid for bleaching, but hemp paper can be processed with recyclable

caustic soda.

226

Finally, like fish oils, hemp oil contains high amounts of omega-

3, a fatty acid the FDA has advised may reduce coronary heart disease.

227

212. See Affidavit of David P. West, Ph.D., supra note 130; HERER, supra note 109, at 1.

213. See Affidavit of David P. West, Ph.D., supra note 130;

HERER, supra note 109, at 1.

214. H

ERER, supra note 109, at 1.

215. Hemp and Marihuana: Hearing on H.R. 2348 Before the S. Comm. on Finance, 79th

Cong. 14-16 (1945) (statement of George E. Farrell, Agric. Specialist, Bureau of Agric. Econ., U.S.

Dep’t of Agric.) [hereinafter Hearing on H.R. 2348].

216. R

AWSON, supra note 108, at 1.

217. Id. at 1-2.

218. Hearing on H.R. 2348, supra note 215.

219. R

AWSON, supra note 108, at 2.

220. Id. at 4-5.

221. Kevin Bonsor, How Marijuana Works, H

OWSTUFFWORKS.COM, http://science.

howstuffworks.com/marijuana5.htm (last visited Mar. 26, 2013).

222. Affidavit of David P. West, Ph. D., supra note 130, ¶ 68(a).

223. R

OBERT DEITCH, HEMP—AMERICAN HISTORY REVISITED: THE PLANT WITH A DIVIDED

HISTORY 221 (2003) (citing II ENCYCLOPEDIA AMERICANS 168 (1956)).

224. Id. at 221-22.

225. Id. at 219.

226. Id.

227. Affidavit of Dr. T. Randall Fortenberry, Ph.D., ¶ 8, Monson v. Drug Enforcement

554 INDIANA LAW REVIEW [Vol. 46:529

The current marijuana prohibition effectively prohibits the cultivation of

industrial hemp—a historic cash crop of the United States with a wide range of

useful applications; as a result, the prohibition is not narrowly tailored even

assuming a compelling government interest exists in prohibiting marijuana use.

2. Medical Marijuana.—In the mid-nineteenth century, the U.S.

Pharmacopeial Convention (“USP”), a scientific nonprofit organization that sets

standards for the quality, purity, identity, and strength of the medicines, food

ingredients, and dietary supplements manufactured, distributed and consumed

worldwide,

228

listed cannabis as appropriate for treating fatigue, coughing fits,

asthma, rheumatism, delirium tremens, migraine headaches, and menstrual

symptoms.

229

By 1900, use of cannabis as a medication had greatly fallen into

disuse because it (1) was insoluble in water; (2) could not be injected via

hypodermic syringe; (3) varied greatly in potency; (4) was difficult to standardize

into doses; and (5) could not compete with newer, synthetic drugs designed to

remedy the same ailments.

230

In 1942, cannabis was removed from the U.S.

Pharmacopoeia.

231

In 1999, the Institute of Medicine (“IOM”) published a study on the risks and

benefits of marijuana-as-medicine.

232

It described marijuana’s substantial

analgesic effects as well as its moderate success as an anti-emetic and appetite

stimulant.

233

The 1999 IOM study concluded though marijuana was not

“completely benign,” there was enough evidence of a therapeutic effect to

warrant further research.

234

Several synthetic versions of the active agent in

marijuana, THC, are approved by the FDA for treating appetite problems in

cancer and HIV/AIDs patients.

235

“Seventy-eight percent of Americans

supported the [legality] of doctor-prescribed marijuana in the treatment of pain

and suffering” in a November 2005 Gallup Poll.

236

The fact the current federal prohibition of marijuana applies to marijuana’s

medical uses, which are medically documented and sworn to by cancer and

HIV/AIDs patients, shows the prohibition is not narrowly tailored even assuming

a compelling government interest exists in prohibiting marijuana use.

Admin., 589 F.3d 952 (8th Cir. 2009) (No. 4:07-cv-00042).

228. About USP, U.S.

PHARMACOPEIAL CONVENTION, http://www.usp.org/aboutUSP/ (last

visited Mar. 26, 2013).

229. H

ERER, supra note 109, at 9.

230. L

ARRY RASTO SLOMAN, REEFER MADNESS: A HISTORY OF MARIJUANA 26 (1979).

231. Cannabis and Cannabinoids, N

AT’L CANCER INST., http://www.cancer.gov/cancertopics/

pdq/cam/cannabis/healthprofessional/page3 (last modified Mar. 21, 2013).

232. IOM

REPORT, supra note 172.

233. Id.

234. Id.

235. See R

AY & KSIR, supra note 105, at 415-17 (“compassionate use protocol”); IOM

EPORT, supra note 172; Nabilone, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/druginfo/

meds/a607048.html (last visited Mar. 26, 2013).

236. Ruth C. Stern & J. Herbie DiFonzo, The End of the Red Queen’s Race: Medical

Marijuana in the New Century, 27 Q

UINNIPIAC L. REV. 673, 676 (2009).

2013] MARIJUANA AND STRICT SCRUTINY 555

3. Conclusion: Narrowly Tailored.—The current federal marijuana

prohibition extends to encompass two uses of cannabis plants that are historically

important as well as useful for today’s society. Therefore, it is likely marijuana

prohibition would fail strict scrutiny’s narrow tailoring requirement.

C. Part III Conclusion: A Failing Grade

In all likelihood, the current federal prohibition of marijuana would fail both

requirements for constitutionality under a strict scrutiny analysis. There exists

no compelling government interest related to morality, crime or health the

government can point to in support of its prohibition of marijuana, and the

current prohibition is not narrowly tailored because it outlaws the production of

the cash crop industrial hemp as well as marijuana for its medically recognized

uses.

D. Judicial Activism?

In general, courts tread the boundaries of Article 3 rarely, and then only with

caution and care as evidenced by the refusal of courts to address political

questions.

237

This respect of separation of powers on the part of the courts is an

important aspect of the United States political system and is something that

should be dealt with using the utmost gravity. That being said, courts since

Marbury v. Madison

238

have been the final arbiters regarding what is and is not

constitutional, as well as interpreters of what the Constitution actually says.

239

It is in this spirit that many of the civil rights we enjoy today have been extracted

out of a document that is in all actuality quite bare. Segregation could still be in

place today without the bravery and tact displayed by the Court in Brown v.

Board of Education.

240

Although there is an argument to be made that it is Congress’s responsibility

to withdraw the federal prohibition of marijuana rather than the Court’s duty to

declare it invalid, the argument is a weak one given the Court’s indispensable

role in developing, refining, and enforcing civil rights. If the Court adhered to

such a strict belief, judicial review would have no meaning, and we would have

no fundamental right to privacy, travel, access to the courts, or to vote. In short,

although it is not in the Court’s interest, or power, to nonchalantly gallivant into

the realms properly occupied by the legislative and executive branches, that is

not the case here. Here, there exists a constitutional right more important than

any other, the interest we all have as humans in our own person, which must be

237. E.g., Baker v. Carr, 369 U.S. 186, 208-34 (1962) (discussing when a political question

is justiciable and when it is not).

238. Marbury v. Madison, 5 U.S. (1 Cranch) 37 (1803).

239. E.g., Lawrence v. Texas, 539 U.S. 558, 564, 574, 578-79 (2003) (finding intimate

consensual sexual conduct was part of the liberty protected by substantive due process under the

Fourteenth Amendment).

240. Brown v. Bd. of Educ. 347 U.S. 483 (1954), supplemented by Brown v. Board of Educ.,

347 U.S. 83 (1955).

556 INDIANA LAW REVIEW [Vol. 46:529

accorded its rightful status with all due haste, lest the infringements on this right

grow in number and magnitude.

IV.

THE LOGICALLY DEFENSIBLE POSITION: A CONCLUSION OF SORTS

In life, there are few things we should take for granted, few things that cannot

be taken from us. Our own body is one of these things. The decision of what to

do with our own self is solely our own, and this decision can never be fully taken

away. Even a prisoner may decide to sit or stand, pray or curse. This right we

have in what happens to our body has no recognition in our current system of

ordered liberty despite a long list of Supreme Court opinions opining about its

importance.

241

In light of this, the Court should recognize, in more than dicta, a

fundamental right to bodily autonomy. Furthermore, the cannabis plant’s history

in the United States dates back to the early colonies, where it was a mandatory

crop for everyone to grow. In fact, marijuana use itself was illegalized for mainly

political reasons. Given this history, a fair comparison of this naturally occurring

plant to tobacco and alcohol, both legal vices in the United States,

overwhelmingly suggests that marijuana should fall under a bodily autonomy

right as it is far less harmful than these legal substances. Finally, there exists no

compelling government interest in infringing on the bodily autonomy right by

way of marijuana prohibition related to morality, the connection between

marijuana and crime, or safeguarding the public health. Even if a dark horse

compelling interest were to emerge, the fact that the current federal prohibition

of marijuana also prohibits growing industrial hemp or using marijuana for its

medical purposes means said prohibition is in no way narrowly tailored.

Therefore, the Supreme Court should: (1) recognize a fundamental right to

bodily autonomy; (2) include marijuana use in this right; and (3) strike down the

current federal prohibition of marijuana for failing to meet strict scrutiny.

241. See discussion supra Part I.A.