norml17 - Page 20
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the action irnpficate a "privilege" or "imrnuIfity?" (3) Does the action allegedly
discriminate against an indi_dual or a class? (4) if so, is the discrh_nafion
The law prohibiting the use of marijuana even for medicinal purposes
was passed by the legislature, and appears impervious to attack on the basis
of the first prong of the test. However, access to desperately needed
medicine is certainly a "privilege" accorded virtually everyone, and
withholding the medicine from those who need it is clearly discriminatory,
since whatever reasons for withholding it are present equally or more severely
with drugs not proscribed 0°eo, marijuana is not physically addictive,
morphine is, yet morphine is available and marijv_na is not). Additionally,
the active ingredient of the drag is available to those whose digestive systems
can absorb it, but not to those who 0roNcalIy) need the drug because their
digestive systems are not functioning.
This could also be phrased as an "immunity" issue. Those who need
opiates, amphetimines, barbituates, and other often-abused drugs are iwanune
from arrest for possession if they have a prescription. Those who need
marijuana are not.
To the final issue, "is the discrimination permissibIe," the balance-of-
harms test should apply. What harm accrues to the state by permitting the
therapeutic use of the drug? With the scientific evidence of therapeutic
benefit that has been obtained since the drug was outlawed, any previous
opinion in that regard would have m be reconsidered°
Therefore, the |aw seems vulnerable to a well-researched attack on
equal protection grounds, especially under the heightened protection of the
state's privileges and immunities clause as contrasted to the equal protection
clause of the I4th amendment.
3. State COnStitutional and commo, n_.
"This may reflect an intention to confer greater gotection from state
government than the federal constitution affords from the federal government°
76 _S___gz.55_C._r,_, 29I Or. 231,630 P.2d 810, _e_k_d_erAe,t_ 454 U.S. !994 (1981)o Summary of the four-
part test is by Justice Utter in _.Iate_y_mil,h, _ note 71, at 228.
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