In Gonzales v. Raich, the Supreme Court vacated the Ninth Circuit’s decision and held that the Controlled Substances Act was not an unconstitutional exercise of the Commerce Clause, yet never reached the substantive due process claim or the medical necessity. This Comment assesses whether there is a right to palliative care and focuses on the substantive due process claim available to the plaintiffs on remand. This Comment argues that, in view of the Court’s precedents, there is a right, subject to limitations, to use last-resort medical marijuana. In addition, the author determines that there is a fundamental right to palliative care and assesses whether an absolute anti-marijuana law burdens this right to the extent that the law is unconstitutional as applied to other cases. By analyzing a range of different factual scenarios, this Comment constructs a framework to test the point at which the fundamental right is limited by strict scrutiny balancing. This Comment concludes by considering the future of the medical decision-making spectrum of liberty interests articulated in Washington v. Glucksberg.
Medicinal Marijuana and Palliative Care: Carving a Liberty Interest Out of the Glucksberg Framework ,
33 Fordham Urb. L.J. 1345
Available at: http://ir.lawnet.fordham.edu/ulj/vol33/iss5/2