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Is Cannabis A Constitutional Question?

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By Marguerite Arnold

As the discussion about cannabis access in Europe continues to progress, albeit slowly, based on the legislative mandates of lawmakers and regulatory policies driven by medical efficacy, there is an additional conversation afoot.

Namely, is the right to access affordable medical cannabis actually something more fundamental? In two countries, Canada and Mexico, this is the discussion that has actually driven the industry forward. In Canada, the constitutional right to medical access is what created the private medical market and then the recreational one beyond that.

In Mexico, where the Supreme Court first decided that patients had a constitutional right to access the drug several years ago, this summer the Court has ordered the Ministry of Health to issue much-stalled regulations within 6 months.

How different are these drivers than what is going on in the United States and Europe right now?

Is Medical Cannabis and Or Healthcare A Human Right?

The question about how access is framed depends on the domestic debate going on around you. For example, in Germany, patient access to cannabis was first decided by a patient lawsuit via a patient seeking to grow his own medicine when obtaining it from a pharmacy was cost-prohibitive.

However, because the right to grow cannabis was not enshrined into constitutional law, this right was taken away after the law was reformed in March 2017. Now German patients, theoretically, with health conditions that qualify for cannabis can try to get it covered by their health insurance.

Since not having health insurance is against the law, the legal construct in Germany is more or less that accessing cannabis, if you can convince your doctor to prescribe it and your insurer to cover it, is a basic, fundamental right of access that comes with sovereignty and or the right to live in the country legally – details and problems along the
way notwithstanding, starting with the fact that insurers are demanding proof of medical efficacy which does not exist yet.

In Canada, as the industry has learned, patients have fought hard to protect their right to cultivate, and this has been upheld, particularly because health insurance coverage for the drug is not mandatory.

In the United States, this political point of view is unwieldy and tied up with greater discussions about how the entire insurance coverage issue turns. Universal healthcare is contentious enough. It is unlikely, in other words, that the federal Constitution will be altered as states’ have done to ensure the progress of the industry.

In Mexico, it remains to be seen how the Supreme Court mandate over the Ministry of Health will fundamentally move the industry forward. There are bank regulations that must be dealt with, all of which depend on the greater acceptance of the U.S. banks that still face an uncertain discussion about cannabis.

However, if accessing cannabis is a human right, and the health department is forced to issue regulations about its use, perhaps the financial regulatory aspects of prohibition that have long held this issue back south of the border are finally on their way out too.

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