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Medical Cannabis Clearly Saves Lives, Federal Judge Declares

February 14, 2018
Dean Bortell, front left, kisses his daughter, Alexis, a medical cannabis refugee from Texas who now lives in Denver. Alexis Bortell is one of five plaintiffs in a lawsuit against the federal government over the scheduling of cannabis. (David Zalubowski/AP)
Army veteran Jose Belen says the horrors of the Iraq War left him with post-traumatic stress disorder, and the drug that helped him cope best with the symptoms was one his Veterans Affairs doctors could not legally prescribe: cannabis.

'How can you say there is no currently accepted medical use?' the judge asked. 'Your argument does not hold.'

“Once I did use cannabis, immediately I felt the relief,” said Belen, who is now working with other medical cannabis patients to mount a court challenge to federal laws criminalizing the drug.

The 35-year-old father of two is one of five plaintiffs in a lawsuit claiming that the government’s decision to classify cannabis as dangerous is irrational, unconstitutional and motivated by politics, not hard science. Belen and his fellow plaintiffs are pushing to have the Schedule I classification of cannabis ruled illegal.

Their lawsuit, filed in July 2017, received its long-anticipated courtroom debut earlier today in New York City. So many supporters, spectators, and media members showed up that U.S. District Judge Alvin Hellerstein’s courtroom was packed to capacity. The crowd nearly filled two overflow rooms as well.

Under review today was the federal government’s pre-trial motion to dismiss the lawsuit.


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Petition the DEA, Say the Feds

Assistant US Attorney Samuel Dolinger spoke for the federal government.

Dolinger argued that the case should be dismissed, citing precedents in which judges previously upheld the constitutionality of existing cannabis laws.

Dying patients don't have 9 years to wait for the DEA to respond, the plaintiffs' attorney argued.

The federal government also argued that the plaintiffs have not petitioned the Drug Enforcement Agency to reclassify marijuana. That would be the proper channel, Dolinger said, rather than using a federal lawsuit to force a change.

“Any person can submit a petition to the DEA,” Dolinger said.

Lawyers for the five plaintiffs said that was true—but the administrative process takes an average of nine years.

Dolinger also spoke of the potential abuse of cannabis by minors as a public safety issue.

He referenced a Congressional act passed in 1970 that opposed the drug’s use to “protect the health and welfare” of the people, and another 1998 measure that acted out of concern for “public safety.”

“How can you say that?” Hellerstein asked. “You say ‘There is no currently accepted medical use in the United States,’” Hellerstein added. “Your argument doesn’t hold.”

The judge asked: “Have there been any studies?”

That elicited a collective laugh from the gallery, which was packed with medical cannabis supporters.

“Mr. Dolinger,” the judge later said, “your argument is not getting anywhere.”

The courtroom gallery broke out in laughter on more than one occasion in reaction to Hellerstein’s cutting remarks.


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Cannabis Should Not Be a Schedule I Drug

The judge said that cannabis does not meet the criteria to be a Schedule 1 drug, because it does have medical use. Hellerstein pointed out that prescription drugs that have caused the “opioid scourge,” as he called it, are classified as Schedule II—in other words, considered less dangerous than cannabis.

Hellerstein discussed various aspects of the government’s scheduling classifications, and mentioned that sales and distribution of marijuana could still be considered criminal if it were classified as Schedule V, so there was no reason for it to be a Schedule I.

“We recognize that there are medical issues that can be treated with medical marijuana, such as pain,” the judge said.

The judge asked Dolinger if any federal agencies involved in the scheduling of cannabis have a fast track for people whose lives are at stake without access to medical marijuana. Dolinger admitted that such a track does not exist.


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Saving the Lives of Children

Attorney David Holland, representing Americans for Safe Access, was one of many lawyers for the plaintiffs. Holland told the court that the ASA represents people who need medical marijuana access to live, including plaintiff Alexis Bortell.

Bortell is a 12-year-old Texas girl who moved to Colorado in order to receive medical cannabis to treat her epileptic seizures. Her fellow plaintiff, 7-year-old Jagger Cotte, uses medical cannabis to control Leigh’s Disease, which is often fatal. Since beginning his cannabis regimen, the lawsuit contends, Cotte “has stopped screaming in pain, has been able to interact with his parents, and has prolonged his life by more than two years.”

Holland stated that the federal government has no process for expedited review of the Schedule I classification of cannabis in the case of life-threatening situations. Previous challenges to the scheduling of cannabis have stretched on for years. He explained that advocacy groups like Patients out of Time were created because children like Bortell will die without access to medical cannabis. She and many others are “medical refugees” because they were forced to move to a state where medical cannabis is legal.


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No Agency Response, No Fast Track

The judge asked: “When basic human life is at stake, what would happen if there is no response from an agency?”

Dolinger, the government attorney, responded: “Such decisions do not come.” The administrative review and petition process, he said, is too lengthy in life-threatening situations.

Addressing Dolinger, the government attorney, Judge Hellerstein said, “You can’t argue there is no medical uses. How can you say that?”

“It’s saved a life,” the judge said, speaking of Alexis Bortell. “She has no more epileptic seizures. If there is an accepted medical use your argument doesn’t hold.”

Though Hellerstein seemed sympathetic to the plaintiffs’ cause today, he also expressed reservations about the lawsuit’s legal grounds. It’s not clear, he said, whether he has the power to rule on the place of cannabis on the federal government’s drug schedule.

A decision from Hellerstein regarding the government’s motion to dismiss the case is expected within the next few days.

Plaintiff Jose Belen emerged from the courthouse feeling vindicated.

“Irregardless of the ruling, in my eyes we won today,” he said. “The sheer fact that we were given the attention we received, it was a win. We are now one step closer to hope and victory.” No matter how Judge Hellerstein rules on today’s motion, Belen and his fellow plaintiffs vow to continue their legal fight. The matter will likely be appealed to the U.S. Court of Appeals for the Second Circuit, then the U.S. Supreme Court.

“This is a dry run for what will come next,” said Belen. “We are not going to stop.”


The Associated Press contributed to this report.

Sara Brittany Somerset's Bio Image

Sara Brittany Somerset

New York-based reporter and photographer Sara Brittany Somerset has covered cannabis culture for 15 years. She has been the U.N. Bureau Chief for High Times, and occasionally works from remote places like Timbuktu.

View Sara Brittany Somerset's articles

  • Hopefully this goes to the Supreme Court who rules in favor of a rescheduling. But Schedule V classification still builds barriers around personal freedom.

    • Nightmask

      You think the government cares about your personal freedom? lol. Haven’t you noticed the many surveillance and so called ‘anti-terror’ laws that both parties push that destroy personal freedom and privacy. Those in power do not care about you, all they care about is maintaining and expanding the status quo of power, profit, and control.

      • Chrisc174

        Even Schedule II would blow this entire prohibition out of the water. Once research barriers are mostly gone and people can say we’ve been lied to about it, it would crumble much faster than it already is.

        • Nightmask

          And that’s why those in power are fighting so hard to muddy the waters and push spin and either keep it illegal or keep it a control substance (it can still be controlled even if legalized). Because once their lies about cannabis start to unravel so will their other lies (hopefully). Cannabis is a dangerous substance with no medicinal properties? Yet opiates and other pharmaceuticals are all ‘safe and effective’? Safe and effective at killing people (100,000 people die every year from properly administered/taken medications though that could be more with the opiate epidemic) or making them life long cash cows, while cannabis is dangerous not for the people but for the psychopathic control freak ruling elite who could stand to lose part of their status quo of power, profit, and control.

          • E.L. Bl/Du

            couldnt have said it better. Its thier way to keep us all either locked up or under “control” After all, prison is profitable. Even in this legal state, now we have to report every drop that comes off of each plant to the state. And the local govt now wants to tax further EACH PLANT. If they sqweeze out the personal grower, then they will buy from the many dispensaries THEY OWN.

    • shouldn’t be a rescheduling . cannabis should be entirely descheduled

  • zO

    Yeah, about time to completely unschedule cannabis from the Controlled Substances Act(CSA) and no longer stress over the benign cannabis plant. Time to put this plant back in the hands of the people.

  • malcolmkyle

    Prohibitionists have always been willing to commit murder rather than admit defeat:

    “Frustrated that people continued to consume so much alcohol even after it was banned, federal officials had decided to try a different kind of enforcement. They ordered the poisoning of industrial alcohols manufactured in the United States, products regularly stolen by bootleggers and resold as drinkable spirits. The idea was to scare people into giving up illicit drinking. Instead, by the time Prohibition ended in 1933, the federal poisoning program, by some estimates, had killed at least 10,000 people.”

    —an extract from: The little-told story of how the U.S. government poisoned alcohol during Prohibition with deadly consequences.

    • …And murder is exactly what it is. The DOJ knows Marijuana saves lives. To willfully allow citizens to die, especially children, when they have the means to save their lives is criminally neglegent homocide. Period.

      • E.L. Bl/Du

        yea, and so is selling assault weapons and taking money from the NRA to block any ANY legislation to limit them. THey USED to be illegal to own, now every nut in the country can get one, how is that not killing us too? Those shooters would have LESS deaths with a knife or a regualr pistol or rifle. But to be able to buy an assault rifle AND a bump stop to turn it into a fully automatic assult rifle used in WAR is ridiculous!

        • Ephraiyim

          This seems about taking control out of the hands of the Federal govt. but you are on a different page. Advocating for mor Federal control of Anything is as “recipe for disaster”.

    • Ephraiyim

      Yes and in the 70’s they sprayed Mexican marijuana fields with paraquat knowing full well that it would be sent to Americans as much pot came from Mexico in those days.
      The issue is they don’t give a flying fk about the health of Americans. It’s about power and control of the American public bought with Corporate dollars.

  • Larry Jones

    Actually the Federal Government has never had the right to say there is no proof that it has health benefits. At one time the Federal Government had 15 Medical Marijuana patients. They sent everyone of them a monthly prescription of it. It is now down to 4 patients, but they still provide Medical Marijuana to them. This by itself disproves the Government claim.

    • @disqus_rGcx94fTr8:disqus Was this the same as the access currently being granted to patients for Epidiolex, under the Expanded Access program? Can you link me to any further information on these 15 medical cannabis patients?

  • jontomas

    From the article:

    >>>”Dolinger, arguing for the government, said federal law did not allow the plaintiffs to challenge the marijuana ban in court. Instead, he said, they must bring a petition through the Drug Enforcement Administration.”

    See how nicely the corrupt prohibitionists rigged their monstrous con on America? – I watched it take nine years in the eighties when activist Jon Gettman went through the entire process, just to receive an unsupported NO. – It’s like a scene out of Beetlejuice. – THAT’S why we switched focus to the states and how we began winning.

    It seems the case for recreational marijuana is even stronger than for medical. – Legal recreational drugs – like more harmful alcohol and tobacco, don’t need to prove a “medical benefit” to keep from being prohibited.

    The crumbling fraud of the federal marijuana prohibition will soon collapse under its own dead weight.

    • Scooter Bell

      Totally agree. If they keep having Dolinger talk in court, to judges like U.S. District Judge Alvin Hellerstein while going up the chain to the Supreme Court, MJ would finally be taken off the Schedule 1 list. He seems to be doing a better job supporting MJ than discrediting it! Focus on the facts, not political junk. Dolinger and the Feds are standing on a house of cards, and Mr. Belen and his lawyer(s) are the breath of air blowing it down. Hats off to them – they have my full support and prayers.

  • Mo Jo

    Please, tell us, what is the “constitutionality of existing cannabis laws”? Because according to the Constitution, the Federal government has ZERO authority to regulate drugs. According to the 10th Amendment, any rights that are not explicitly given to the Federal government by the Constitution shall remain with the States and the People. The Federal government used the Commerce Clause to justify their actions, but does anybody know how they use it??? The Feds claim that (a) you must pay taxes on drugs and (b) if they refuse to accept those taxes then (c) therefore you haven’t paid the taxes and (d) since the Feds refuse to accept the taxes, therefore State regulation of drug use is illegal and somehow drug regulation magically falls under the Federal jurisdiction. It’s a total sham!

  • FlunkedAgain

    Thomas Jefferson: “The legitimate powers of government extend to such acts only as are injurious to others.
    But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

    How does MY Marijuana use Pick YOUR pocket, or Break YOUR leg?

  • Paul Boehme

    Understand, Main Resistance is Because of the Lawsuits folks Will bring against the Perpetrators, Legislators, those who Benefited after donating to legislator.
    Legislators will Pretend to not Know of current cannabis Science, to try to avoid Justice!
    Science showing cannabinoids Heal, Nerves, Muscles, Imbalances of Immune System, of Cell Growth, but only while the Effective amount of cannabinoids are in the bloodstream, to be delivered to site of Imbalance/Injury. Eat growth trim. Add Decarbed. Smoothie, Garnishment, Coconut oil. Itz a Vegetable.

  • larsshoff

    How can uncle sam swear in on the bible, then go against it?

    And God said, Behold! I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat. – Genesis 1:29. I’ve heard this called “man’s original diet.” I’m very fond of the idea that we were meant to be vegetarians, to live without violence or killing. And I’m grateful to live in a time and place where this is again possible. It may not be Eden, but I have access to produce all year ’round.

    • Ephraiyim

      Hmph. If they are a politician they break all of their promises. Why should they fear God when they don’t even fear the public. They are God haters no matter what they claim. It’s almost required in politics, and much of christianity, to think one will not be held to their promises.
      Sing a couple of christian songs to see how often people make promises to God but when the conviction to obey comes they balk.
      Until His people keep their word to God it is unlikely the world will.
      BTW I’m speaking to myself as much as anyone.

  • John Antonellis

    The National Academies of Sciences, Engineering and Medicine released this report 1/17. Read its conclusion 4-1, why do we have to tolerate ignorance in the face of science, NO MEDICAL BENEFIT! I’m a 5 yr pancreatic cancer survivor and suffer chronic pain from several injuries!