PHOENIX — Medical marijuana patients could learn later this month if they have a constitutional right to grow their own weed.
Maricopa County Superior Court Judge Katherine Cooper said Wednesday she will consider on Oct. 18 a bid by the Department of Health Services to have the lawsuit thrown out. Assistant Attorney General Gregory Falls hopes to convince her that nothing in the Arizona Constitution about the rights of patients to choose their own health care extends to making their own drugs.
If Cooper doesn't buy that argument, she is ready for the next step: She scheduled an Oct. 21 hearing to allow Michael Walz, the attorney for two medical marijuana patients, to tell her why she should order state Health Director Will Humble to let them have their plants.
If Walz ultimately succeeds, the implications go far beyond these two men. It would pave the way for similar rights for the approximately 40,000 individuals who already have been granted permits to possess the drug but now are required to purchase their supply from one of the state's nearly 100 state-regulated dispensaries.
At issue is what Walz said is a conflict between the Medical Marijuana Act that voters enacted in 2010 and a separate constitutional amendment, also approved by voters, two years later.
The 2010 law allows those with a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. It also envisioned dispensaries around the state.
That law also allows anyone not within 25 miles of a dispensary to grow up to 12 plants at any one time. And since no dispensaries were operating, every cardholder initially got that right.
But Humble said that now virtually all Arizonans are within that 25-mile radius. So he is denying grow rights to individuals as they renew their annual permits.
Walz, however, points to a 2012 constitutional amendment which overrules any law that requires anyone to “participate in any health care system.” And that, he argued, means individuals can't be forced to give up the cheaper option of growing their own plants.
“People are legally entitled, if their doctor gives them certification, to obtain and use marijuana for medical purposes,” Walz said Wednesday.
“Many people cannot afford the prices that are charged by dispensaries,” he continued.”Therefore, they need to be able to grow their marijuana for themselves.”
And Walz said that, for some patients, the strain of marijuana is crucial.
“A particular strain may be effective to treat their specific condition and they need that strain,” Walz argued. “They can't depend on a dispensary to make the effort of providing a specific strain for any particular person.”
Humble isn't buying the argument — and not only because he rejects the idea that the Arizona Constitution guarantees individuals the right to make their own regulated medicine. He pointed out that voters themselves approved the provision in the 2010 law, which says the right to grow disappears once there is an available dispensary.
Walz dismissed that as irrelevant.
“I don't know that the voters were aware of that specific provision,” he said.
“They clearly were aware that some patients would be able to grow,” Walz said. “As far as when and how many of those rights would be extinguished, I don't think the voters had a clue.”