PHOENIX — A constitutional right to control your own health care is not a right to grow your own medical marijuana, according to an attorney for the state’s top health official.
Attorney Gregory Falls is asking Maricopa County Superior Court Judge Katherine Cooper to throw out claims by two men that they are constitutionally entitled to plant, grow and harvest the drug.
Falls said the fact that voters allowed those with a doctor’s recommendation to obtain and use the drug does not give them the power to ignore other provisions of the 2010 medical marijuana law, which says people living within 25 miles of a state-regulated dispensary have to obtain their drugs from that source.
The outcome of the legal fight has implications beyond the two men who filed suit.
A decision against state Health Director Will Humble would open the door to all of the state’s nearly 40,000 medical marijuana patients each having the right to grow up to 12 plants of his own. And Humble said that would all occur without state oversight, including the ability to ensure the drugs are used for the intended purposes.
“It turns into a free-for-all,” he said.
The 2010 initiative allows patients with certain specified medical conditions to obtain 2ƒ ounces of marijuana every two weeks.
It also envisioned a network of dispensaries around the state. But the law also said anyone at least 25 miles from one of those dispensaries could grow his own — up to 12 plants at any one time.
With no dispensaries until earlier this year, that gave growing privileges to anyone with a state-issued medical marijuana card. But when those annual cards expired, Humble checked his list of open dispensaries and rescinded growing privileges for anyone within 25 miles.
Attorney Michael Walz, who represents the men, said the mandate to purchase from a dispensary violates a provision in a 2012 constitutional amendment prohibiting any law that requires anyone to “participate in any health care system.”
Falls said Walz is missing the point. He said nothing in the medical marijuana law requires anyone to participate in the medical marijuana program.
“Prohibiting someone from self-supplying controlled substances, even if the purpose is medical, is not the same as compelling someone to participate in a health-care system,” Falls wrote. “Those who volunteer to participate must follow the terms of the Arizona Medical Marijuana Act and rules.”
Falls also pointed out that the medical marijuana law does not require insurance companies to provide coverage for medical marijuana. He said that means those who crafted the law expected patients to pay for their drugs. And Falls said the entire lawsuit is based on the desire of the two men not to pay for health-care services related to medical marijuana.
“They want to ‘grow their
own’ ” Falls wrote. “Maybe they also want to self-supply other controlled substances.”
Humble said the provision in the law denying self-growing to patients near dispensaries makes sense.
“When folks are growing their own plants, there’s absolutely no way to prevent diversion of that marijuana to other than qualified patients,” he said.
Humble said the regulations his agency adopted have “robust inventory controls.”
“But when people are growing marijuana in their own houses ... there’s this big opportunity for diversion to folks that are not qualifying patients,” he said.