Patients who use pot as medicine sue state for the right to smoke it

Cathy Jordan credits pot with helping her defeat the odds in the battle against Lou Gehrig’s disease she’s waged for more than 30 years.

And although she can now legally obtain the cannabis treatment she’s relied on for decades, Jordan is prohibited from what she and her doctors swear is the best way for her to consume her medicine — smoking joints.

Jordan is among the plaintiffs challenging a state law that bans smoking pot as a route of administration for the hundreds of thousands of patients who are eligible for medical marijuana treatment in Florida.

With her husband, Bob, serving as her interpreter during a trial last week, Jordan told Leon County Circuit Judge Karen Gievers and a packed courtroom that she started smoking pot a few years after she was diagnosed with amyotrophic lateral sclerosis, or ALS, in 1986.

“My doctors are really not concerned with the risk because I’m still alive. In ’86, I was given three to five years to live. And I’m still here,” Jordan, draped in a pink shawl, testified.

The hearing came more than 18 months after voters overwhelmingly approved the constitutional amendment that broadly legalized marijuana for patients with debilitating medical conditions like Jordan.

Lawmakers last year enacted the prohibition on joints largely to protect the public from the ill effects of smoking, lawyers for the state argued.

Senior Assistant Attorney General Karen Brodeen said “smoking should never be a route of administration for any medicinal product.”

The prohibition on smoking was included in a state law aimed at implementing the 2016 constitutional amendment, but John Morgan, the Orlando trial lawyer who largely bankrolled what was known as Amendment 2 and initiated the lawsuit, is among those who maintain that the smoking ban runs afoul of the Constitution. Gievers did not rule on the challenge last week.

“The amendment itself says smoking is not allowed in public places. I don’t think you need to be too much of a legal scholar to understand that means it is allowed in other places,” Morgan told reporters before the hearing began.

During arguments last week, Jon Mills, a former House speaker and former dean of the University of Florida law school who was one of the chief authors of Amendment 2, told Gievers the law passed last year is in “irreconcilable conflict” with the Constitution.

Mills also pointed to the Legislature’s outlawing of smoking marijuana as evidence that the Constitution permits it.

“Why would you act to exclude smoking if smoking wasn’t authorized?” he asked.

Lawyers for the state, however, argue that the amendment does not expressly allow smoking and gives Florida officials broad authority to “regulate health, safety and welfare” of the public.

“It’s not anything goes,” Senior Deputy Solicitor General Rachel Nordby said.

But other routes of administration are problematic for Jordan, who grows her own marijuana.

Vaping makes her gag. Edibles give her stomach cramps. Smoking gives Jordan “dry mouth,” which offsets the excessive drooling caused by ALS, she said. And it relaxes her muscles, increases her appetite and helps combat depression, said the diminutive Jordan, who frequently breaks out in an infectious smile.

“It just makes my life a lot more bearable,” she said.

The constitutional amendment relied on a 2014 definition of marijuana in Florida criminal law, which includes “all parts of any plant of the genus Cannabis, whether growing or not.” That includes whole-flower marijuana, which is used for smoking, the plaintiffs contend.

The plaintiffs are also relying on an “analysis of intent” of the amendment, published prior to the November election and disseminated broadly to the media and the public, to bolster their argument that smokable pot always was part of the plan.

Ben Pollara, who was the campaign manager for Amendment 2 and is president of Florida for Care, a nonprofit organization advocating for patients and the medical marijuana industry, testified Wednesday that the public was fully aware that the proposal would have legalized smoking of medical marijuana.

“It was just assumed by most, if not all, that when we were talking about marijuana, we were talking about the green, leafy stuff that you smoke,” Pollara, one of the authors of the analysis, said.