Will Court Challenges Lead To Psychedelics Legalization?

• A Seattle doctor is suing the DEA for blocking access to psilocybin for a terminally ill patient
• It was a successful court challenge in Canada that led directly to the national legalization of cannabis
• Governments could conceivably be ruled to be negligent by our courts for withholding access to psychedelics-based medicine

Formal clinical research on psychedelic drugs has been yielding a steady stream of successful clinical trials, with different psychedelic drugs and for various medical conditions. And research is rapidly broadening into additional medical treatment markets.

Dozens of publicly listed companies are advancing this research. They are also building the medical infrastructure for this industry: treatment facilities and supporting IP.

And these companies are well-funded. Over US$700 million has flooded into the sector since the Compass Pathways (US:CMPS) IPO last September. Roughly US$400 million of that has been raised by public companies.

What’s missing from the picture for this emerging industry? Legalization of psychedelic drugs for medicinal use.

The road to psychedelic drug legalization

There is some movement here.

At the state level, increasing numbers of U.S. states are either moving toward decriminalization of these substances or at least openly discussing/debating doing so. A pending California bill proposes legalizing the possession of many psychedelics.

Local governments in the U.S. are also getting active here. But these moves are largely to remove (misguided) criminal penalties for the use and/or possession of these substances. By themselves, these initiatives do little do advance the legal psychedelic drug industry.

In Canada (as with cannabis), legal reform is progressing from the top down. Health Canada has begun issuing medical “exemptions” to permit the legal use of psilocybin for medicinal purposes.

It is signaling willingness to continue improving access. For psilocybin, at least, Canada appears to be on a path toward national legalization.

But one drug (or one state) at a time, the normalization of psychedelic drug laws would be a very long road.

Is there another means to expedite this process? Yes. And it lies through our courts.

A Seattle doctor is suing the U.S. Drug Enforcement Agency (DEA) for denying an application to use psilocybin to provide end-of-life relief for a terminal patient.

It’s the first lawsuit of this nature in the United States, but it may not (and hopefully will not) be the last.

It was a successful federal court challenge in Canada (back in 2000) of its irrational and antiquated cannabis Prohibition laws, which set in motion the chain of events that led to national cannabis legalization (R v. Parker).

That process ultimately took over 15 years. But it began during the peak of the now-infamous War on Drugs. And it was delayed by an obstructionist Conservative government that was in power for 10 of those years.

Furthermore, the evidence supporting cannabis legalization for medicinal use largely was – and still is – informal empirical evidence. It’s much more difficult to prove a medicinal need (and the denial of a legal right) via such evidence.

A strong case for the legalization of psychedelic drugs

The scenario for the legalization of psychedelic drugs is considerably different, in several key respects.
 

1. Much greater need for the medicinal benefits of psychedelics
2. Objective evidence to prove the efficacy of psychedelics-based medicine
3. Lack of effective therapeutic options
4. Acknowledgement of the failure of the War on Drugs

First, there is a demonstrably greater need for psychedelic medicine. The Mental Health Crisis already affects over 1 billion people, just from stress-related disorders like depression, anxiety, substance abuse and PTSD. This Crisis is rapidly worsening as a consequence of the coronavirus pandemic.

Psychedelic drugs are widely regarded as the best (and only) hope of arresting this Crisis. This hope is not based upon mere empirical evidence of therapeutic use – as with cannabis. It is being proven via formal, clinical drug trials.

This is much more powerful evidence to bring to court in any legal challenge because it is both official and objective. Indeed, mere empirical evidence (used to justify cannabis legalization) is often shunned by courts precisely because it is unofficial and lacks full objectivity.

The Seattle doctor currently suing the DEA can cite several clinical studies on the successful medicinal use of psilocybin, including one study that showed psilocybin reduced end-of-life depression and anxiety for 80% of terminally ill patients participating in the study.

Powerful evidence. Difficult to rebut.

Couple that with the lack of effective therapeutic options. Cannabis has been shown (empirically) to provide medicinal benefit for hundreds (if not thousands) of different medical conditions.

However, many of these medical disorders have reasonably effective legal therapy options available. Thus, it is more difficult to prove a legal “need” for cannabis in many medical contexts.

Conversely, the Mental Health Crisis has become a “crisis” because mainstream medicine has failed miserably in providing adequate treatment options for (in particular) depression, substance abuse and PTSD.

Millions of people in the U.S. alone with unmet medical needs. Acute suffering that could be alleviated through the legal access to psychedelics-based therapies. More powerful evidence.

And the War on Drugs is now an acknowledged failure.

As the cannabis legalization movement progresses, an increasingly important component of this movement is “expunging” criminal records for cannabis possession. Bogus criminal convictions (for the possession of a benign substance) that have stained the records and damaged the lives of 10s of millions of Americans.

The United Nations and World Health Organization are now advocating the immediate decriminalization of drugs. It is a starting point in reducing further damage from the War on Drugs – as misguided Western governments reluctantly acknowledge their past sins and ratchet-down this despicable crusade.

Putting further pressure on governments, applicants seeking to overturn psychedelic drug laws in the courts don’t need to rely upon merely asserting their Constitutional rights (to safe and effective medical therapies).

Governments can be attacked directly as an action in negligence.

Governments have general legal immunity from such lawsuits. But the immunity is not absolute. It can be negated in certain, extreme circumstances.

Maliciously denying legal access to medicines that are badly needed by millions of people undoubtedly qualifies as “extreme”.

Governments negligently refusing to provide access to psychedelic drug therapies

A Psychedelic Drug Revolution is underway: revolutionizing (in particular) mental health care.

Currently, people suffering from depression or substance abuse or PTSD often seek treatment for years and years – with little to no long-term progress to show for their efforts.

These same people are now being tested in the clinical trials of psychedelic drugs. And in many cases, patients “cease to exhibit symptoms” after a few sessions, i.e. they are cured.

This is not some minor, incremental improvement in mental health care.

This is like the discovery of penicillin.

Prior to the era of antibiotics, our healthcare system struggled just as much in treating bacterial infections then as they do in treating mental health conditions today.

What if a government chose to deprive its citizens of access to antibiotics – for purely political reasons? An open-and-shut action in negligence.

There is “an easy way” and “a hard way” to get to the end of the road in the normalization of psychedelic drug laws. The easy way is for governments to (immediately) begin good-faith efforts to normalize these drug laws ASAP.

The hard way is for motivated citizens (like the Seattle doctor) to begin taking governments to court. Force them to justify their bogus drug laws in front of a judge – and face the consequences for their actions when they fail to do so.

Many of our Constitutional rights have effectively been put through a paper-shredder by heavy-handed governments. And these infringements have been rubber-stamped by a largely disinterested judiciary. But one area of law where judges still generally manage to ‘remember’ their public duty is with respect to violations of our Constitutional rights that directly impact our health and/or safety.

People don’t merely “want” access to psychedelics-based medical therapies. They need access to these therapies.

We don’t merely believe that psychedelic drugs can provide better healthcare for those suffering from mental health disorders. We know these drugs can revolutionize mental health care – through a long-and-growing list of successful clinical studies.

Most Western governments currently continue to stand in the way of such access. The duty of our courts is clear.