Seeley v. State

940 P.2d 604, 132 Wash. 2d 776, 1997 Wash. LEXIS 554

Opinions

Madsen, J.

The State appeals a decision of the Pierce County Superior Court holding that RCW 69.50.204(c)(14), which places marijuana in Schedule I of controlled substances, is unconstitutional, violating art. I, §§ 12, and 32 of the Washington Constitution. This court concludes that RCW 69.50.204(c)(14) does not violate the Washington Constitution and reverses the trial court.

STATEMENT OF THE CASE

The Respondent, Mr. Seeley, was diagnosed with chor-doma, a rare form of bone cancer, in 1986. Mr. Seeley has undergone numerous surgeries including the removal of his right lung and a removal of part of the lower lobe of his left lung. Mr. Seeley also suffers from "severe Obstructive Airway Disease.” Clerk’s Papers (CP) at 267. Mr. See-ley’s condition is diagnosed as terminal.

Throughout his battle with cancer, Mr. Seeley has received radiation therapy and chemotherapy. Mr. Seeley was treated with various chemotherapeutic agents which commonly produce nausea and vomiting. He was treated with synthetic tetrahydrocannabinal (THC) (Marinol or dronabinol) and other antiemetic drugs for the nausea and vomiting which resulted from the chemotherapy. Mr. Seeley has also smoked marijuana during chemotherapy. Mr. Seeley prefers smoking marijuana to control these side effects. Mr. Seeley states that smoking marijuana has been more effective in relieving his symptoms than other antiemetics.

Marijuana is a hallucinogen derived from the Indian hemp plant. One of the principle active ingredients in marijuana is delta-9-tetrahydrocannabinal (THC). The amount of THC present in marijuana varies in the plant depending on the origin of the plant, growing conditions, and cultivation. In addition to THC, marijuana contains over 400 other chemical substances including 61 identified cannabinoids, the active ingredients in marijuana, including THC. In 1986, the pure synthetic form of THC (Mari-nol or dronabinol) was approved by the federal Food and Drug Administration (FDA) and is used as an antiemetic. The FDA has not approved marijuana for medical treatment.

Marijuana is regulated by both the state and federal government. Washington adopted the Uniform Controlled Substances Act, RCW 69.50, in 1971. The Uniform Controlled Substances Act parallels the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 (Supp. 1996). These laws establish a comprehensive statutory mechanism to control the manufacture, distribution, and use of controlled substances. Penalties are imposed for violations of the law. Both statutes place controlled substances in numerical schedules I to V and create an administrative mechanism to change the placement of substances on the various schedules. Substances on schedule I are illegal under all circumstances except for research. Substances on schedules II to V are legal to possess only under a valid prescription. Federal and state laws impose tandem registration requirements on practitioners, pharmacists and manufacturers of controlled substances.

Both federal and state statutes list marijuana in schedule I of controlled substances. See RCW 69.50.204(c)(14); 21 C.F.R. § 1308.11(d)(19) (1996). Thus, it is illegal for use under all circumstances except under narrow exceptions for research. Controlled substances listed in schedule I under federal law may not be prescribed or dispensed anywhere in the United States unless a specific registration to do so is obtained to use the substance for research purposes. See 21 U.S.C. §§ 822-23, 872 (1981). Marijuana cannot be legally prescribed, nor can a prescription for marijuana be filled by a pharmacist in Washington unless a federal registration is granted.

The State of Washington obtained federal approval to use marijuana for research purposes and the Legislature passed the Controlled Substances Therapeutic Research Act (Research Act) in 1979. RCW 69.51. The Research Act was enacted to determine if the principle ingredient in marijuana, THC, was effective in the treatment of nausea and vomiting caused by radiation and chemotherapy. RCW 69.51.020; see also CP at 41. Although still law, the Legislature stopped funding the program in 1980. The reason given for the discontinuation of funding was because the results were favorable and THC was synthesized, approved by the FDA, and marketed as Marinol. Thus, the Legislature determined that state funding was no longer necessary.

However, in 1996, the Washington Legislature restored funding to the board of pharmacy to study the effects of medicinal marijuana.¹ The study is to be performed in connection with a Washington State University research project which will research a tamper-free means of cultivating effective and safe marijuana plants for medicinal purposes. 1996 Legislative Budget Notes, Supplemental Budget § 217, at 114 n.8; § 605, at 169 n.8.²

Similar to the federal statute, Washington’s Uniform Controlled Substances Act classifies controlled substances based on their therapeutic value, potential for abuse, and safety. A substance is listed in schedule I if it has (1) a high potential for abuse, (2) no currently accepted medical use in treatment in the United States, and (3) no accepted safety for use in treatment under medical supervision. RCW 69.50.201. A substance is placed in schedule II upon finding that: (1) the substance has a high potential for abuse, (2) the substance has currently accepted medical use in treatment or currently accepted medical use with severe restrictions, and (3) the abuse of the substance may lead to severe psychic or physical dependence. RCW 69.50.205.

In Washington, the Legislature made the initial scheduling placements when it adopted the Uniform Controlled Substances Act in 1971, including the placement of marijuana on schedule I. In 1986, the Legislature placed Marinol, the FDA approved form of synthetic THC, on schedule II.³ Laws of 1986, ch. 124 § 3 (codified at RCW 69.50.206(f)(1)). The Legislature kept marijuana on schedule I. All other forms of tetrahydrocannabinols are listed in schedule I. RCW 69.50.204(c)(22).

The Uniform Controlled Substances Act specifically permits the board of pharmacy to schedule or reschedule controlled substances based on specific criteria. RCW 69.50.201.⁴ The board of pharmacy, pursuant to its author ity, has maintained marijuana in schedule I.⁵ Mr. Seeley has not asked the board of pharmacy to initiate the state administrative process described in RCW 69.50.201 for rescheduling marijuana and the board has not independently initiated that administrative process.

The Respondent, Ralph Seeley, filed this pro se lawsuit against the State of Washington in the Superior Court for Pierce County. Mr. Seeley asked the Superior Court for a declaratory judgment finding RCW 69.50.204(c)(14), which places marijuana on schedule I of controlled substances, unconstitutional under art. I, §§ 12, 32 of the Constitution of the State of Washington. Additionally, Mr. Seeley asked the court for an order directing the board of pharmacy to reclassify marijuana so that it may be prescribed by physicians for the plaintiff and other citizens of Washington who have a legitimate medical need for its therapeutic effects.

The Pierce County Superior Court granted Mr. Seeley’s motion for summary judgment, finding that the placement of marijuana in schedule I of controlled substances violated his rights and liberties as protected by the Constitution of the State of Washington, art. I, §§ 12, 32. The State of Washington directly appealed from this judgment and this court granted review pursuant to RAP 4.2(a)(2).

DISCUSSION

I. Independent Analysis Under The Privileges and Immunities Clause

Respondent asserts that classifying marijuana in schedule I of controlled substances violates the privileges and immunities clause of the Washington Constitution.

Respondent asserts that the privileges and immunities clause of the Washington Constitution affords the citizens of Washington greater protection than its federal counterpart, the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and, thus, requires an independent analysis based on the state constitutional provision. Respondent maintains that this court should apply the independent analysis adopted by the Oregon Supreme Court, whose state privileges and immunities clause is substantially identical to the Washington Constitution. See State v. Clark, 291 Or. 231, 630 P.2d 810, cert. denied, 454 U.S. 1084 (1981).⁶

Washington courts look to the six factors outlined in State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986), to determine whether a state constitutional provision extends broader rights than the Federal Constitution.

The first criterion involves an analysis of the textual language of the state constitutional provision, and the second criterion requires a comparison of the parallel state and federal provisions. Id. at 61. Article I, section 12 of the Washington Constitution provides:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

The Fourteenth Amendment of the United States Constitution provides, in pertinent part:

No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of fife, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

See State v. Smith, 117 Wn.2d 263, 285, 814 P.2d 652 (1991) (Utter, J., concurring).⁷ Respondent contends that although the two provisions contain parallel rights, art. I, § 12 contains language that is "significantly different” from its federal counterpart. Respondent claims that the difference in the language suggests that the drafters meant something different from the federal provision. "Ordinary rules of textual and constitutional interpretation, as well as the logic of federalism, require that meaning be given to the differences in language between the Washington and United States Constitutions.” Smith, 117 Wn.2d at 285. Respondent also maintains that because Washington’s provision was adopted from another state’s constitution and not the Federal Constitution it was meant to be interpreted independently of the Federal Constitution.

While it may be true that there are some differences in the language, Respondent does not suggest what the differences signify nor what meaning should be given to the words in the state constitution. Moreover, in spite of similar arguments, this court has repeatedly found these provisions substantially similar and treated them accordingly. State v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996); State v. Thorne, 129 Wn.2d 736, 771 n.9, 921 P.2d 514 (1996); State v. Shawn P., 122 Wn.2d 553, 560-61, 859 P.2d 1220 (1993); Smith, 117 Wn.2d at 281; In re Borders, 114 Wn.2d 171, 175, 786 P.2d 789 (1990); Omega Nat’l Ins. Co. v. Marquardt, 115 Wn.2d 416, 430, 799 P.2d 235 (1990); City of Seattle v. Rogers Clothing for Men, Inc., 114 Wn.2d 213, 233, 787 P.2d 39 (1990); American Network, Inc. v. Utilities & Transp. Comm’n., 113 Wn.2d 59, 77, 776 P.2d 950 (1989).

The third factor involves an analysis of the state constitutional and common-law history of the state constitutional provision. Gunwall, 106 Wn.2d at 61. Respondent notes that art. I, § 12 of the Washington Constitution was based on a similar provision of the Oregon Constitution, art. I, § 20. See Smith, 117 Wn.2d at 285 (Utter, J., concurring) (citing The Journal of the Washington State Constitutional Convention, 1889, at 501 n.20 (Beverly Paulik Rosenow ed. 1962)). This provision was interpreted by the Oregon Supreme Court to require an analysis independent of the Fourteenth Amendment. See Clark, 291 Or. 231. Thus, Respondent argues that Oregon’s constitutional history is persuasive when interpreting art. I, § 12 of the Washington Constitution. In reviewing the history of Oregon’s provision the Oregon Supreme Court stated:

"The provisions of the state Constitution are the antithesis of the fourteenth amendment in that they prevent the enlargement of the rights of some in discrimination against the rights of others, while the fourteenth amendment prevents the curtailment of rights. . .

Smith, 117 Wn.2d at 285 (quoting Clark, 630 P.2d at 814 n.8).

Although an interpretation of the Oregon provision may provide some guidance, Respondent provides no constitutional or common-law history for the Washington provision at issue. This factor requires an analysis of the history of the Washington constitutional provision which was not met by the Respondent in this case.

The fourth factor to be addressed is preexisting state law. Gunwall, 106 Wn.2d at 61. "Previously established bodies of state law, including statutory law, may also bear on the granting of distinctive state constitutional rights.” Id. Respondent admits that there is no preexisting state law regarding the use of marijuana, medically or otherwise. This indicates that using marijuana is not a right that the Washington Constitution was designed to protect.

Additionally, Appellant correctly notes that Washington’s Constitution provides a constitutional grant of authority to the state legislature in the area of public health and the regulation of medicine and pharmacy. Constitution art. XX, § 2 provides:

The legislature shall enact laws to regulate the practice of medicine and surgery, and the sale of drugs and medicines.

This article identifies Washington’s unique historical interest in the regulation of drugs. The public health authority granted in art. XX had its origin even earlier in the territorial medical practice act of 1881 (Code of 1881, ch. 169, § 2285). Constitutional history and preexisting state law recognize that the Legislature has the authority to protect the public health and safety through the regulation of drugs. Thus, this factor supports the conclusion that greater protection under the state constitution does not exist in this context.

The fifth criterion addresses the structural differences between the federal and state constitutions. Gunwall, 106 Wn.2d at 62. The United States Constitution is a grant of limited power authorizing the federal government to exercise only those constitutionally enumerated powers, whereas the state constitution imposes limitations on the otherwise plenary power of the state. Id. at 66. Our analysis in Gunwall indicates that this factor will always support an independent analysis under the state constitution. See Id. at 62, 66.

The last factor looks at whether the subject matter is of particular state or local concern, or if there appears to be a need for national uniformity. Id. at 62. Matters of state or local concern are more appropriately addressed by resorting to the state constitution. Id. Respondent asserts that, because he has been treated at a state-owned and regulated facility by a doctor who is licensed in this state, his access to medicine is an issue of local or state concern. Respondent also claims that the board of pharmacy’s power to schedule and reschedule substances indicates that national uniformity is not needed when regulating controlled substances.

However, the substantial similarities between RCW 69.50 and the federal controlled substance law indicate that Washington’s Uniform Controlled Substances Act is intended to be part of a uniform policy to control illegal drugs. See State v. McFadden, 63 Wn. App. 441, 447, 820 P.2d 53 (1991), review denied, 119 Wn.2d 1002 (1992) ("[ajdoption by the Washington State Legislature of a uniform narcotics control statute substantially identical to the federal legislation is a clear statement that the matter is not one of special local concern but one as to which national and uniform policies are desirable”). The Uniform Controlled Substances Act has been adopted in some form by all 50 states, all of which place marijuana on schedule I. See Unif. Controlled Substances Act, 9 U.L.A. Prefatory Note at 2 (1988).

The Prefatory Note for the Uniform Controlled Substances Act summarizes the important interest in maintaining the integrity of uniform state and parallel federal law.

[The] Uniform [Controlled Substances] Act was drafted to achieve uniformity between the laws of the several States and those of the Federal government. It has been designed to complete the new Federal Narcotic dangerous drug legislation and provide an interlocking trellis of Federal and State law to enable government at all levels to control more effectively the drug abuse problem. . . . Much of [the] major increase in drug use and abuse is attributable to the increased mobility of our citizens .... [I]t becomes critical to approach . . . this problem at the State and local level on a uniform basis.

Id. It is apparent that there is a need for national uniformity in the area of controlled substance regulation and that Washington’s Uniform Controlled Substances Act was intended to be part of a national scheme.

In the present case, an independent analysis under the state constitution is not warranted. The analysis provided under factors four and six shows that the Respondent’s interest in smoking marijuana as a medical treatment was not a right the Washington Constitution was designed to protect and that there is a recognized need for national uniformity when regulating controlled substances. We find that the protections under the state and federal provisions are coextensive in this context and we will utilize the federal equal protection analysis to resolve whether the placement of marijuana in schedule I of controlled substances violates art. I, § 12 of the Washington Constitution.

II. Equal Protection Analysis

In an equal protection analysis this court must first determine the standard of review against which to test the challenged legislation. Respondent contends that the legislative decision placing marijuana in schedule I threatens a fundamental right and is therefore entitled to strict scrutiny. If governmental action threatens a "fundamental right,” the classification will be upheld only if it is necessary to accomplish a compelling state interest. Smith, 117 Wn.2d at 277.

This court has held that "[t]he right to smoke marijuana is not fundamental to the American scheme of justice, it is not necessary to ordered liberty, and it is not within a zone of privacy.” State v. Smith, 93 Wn.2d 329, 346-47, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980). Other federal and state courts have agreed that possession of marijuana is not a fundamental right guaranteed by the United States Constitution. See National Org. for the Reform of Marijuana Laws (NORML) v. Bell, 488 F. Supp. 123 (D.C. Cir. 1980); State v. Anonymous, 32 Conn. Supp. 324, 355 A.2d 729 (Super. Ct. 1976); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969); People v. Alexander, 56 Mich. App. 400, 223 N.W.2d 750 (1974); Kreisher v. State, 319 A.2d 31 (Del. Super, Ct. 1974).

However, Respondent contends the right infringed is not a general right to smoke marijuana but, rather, a right to have marijuana prescribed as his preferred medical treatment for the nausea and vomiting associated with chemotherapy. Citing Bering v. Share, 106 Wn.2d 212, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 (1987), Respondent claims this court recognized that a physician has a fundamental right to practice medicine. Respondent argues that this fundamental right should encompass the right of a patient to have the aid of his physician to relieve his suffering.

Contrary to Mr. Seeley's argument, this court in Bering did not create a fundamental right of a physician to practice medicine. See Bering, 106 Wn.2d 212. In Bering, we held that geographical limitations on picketing outside a medical building which performed abortions did not violate federal or state free speech rights. Id. Respondent incorrectly asserts that this court established a "fundamental” right of physicians to practice medicine, and, therefore, his argument is without merit.

Citing the United States Supreme Court decision in United States v. Rutherford, 442 U.S. 544, 99 S. Ct. 2470, 61 L. Ed. 2d 68 (1979), Appellant states that a terminally ill individual does not have a constitutional right to access unapproved medicines. In Rutherford, a group of terminally ill cancer patients sued to enjoin the federal government from interfering with interstate transportation of laetrile, a drug not approved as "safe and effective” under the Federal Food, Drug and Cosmetic Act. Id. at 546. Although the Supreme Court did not directly address the patients’ claim that they had a constitutionally protected "privacy” right to use laetrile, Justice Marshall’s opinion for a unanimous Court emphasized the special dangers presented for terminal patients by ineffective drugs, the wide variety of products whose producers claim have curative properties, and the difficulty of reviewing all such claims and products. Id. at 556.

On remand the United States Court of Appeals for the Tenth Circuit did address and reject the constitutional challenge based on the patients’ right to privacy. The Tenth Circuit found that, although a decision by a patient whether to have a treatment or not is a protected right, the "selection of a particular treatment, or at least a medication, is within the area of governmental interest in protecting public health.” Rutherford v. United States, 616 F.2d 455, 457 (10th Cir.), cert. denied, 449 U.S. 937 (1980). Other courts have agreed with the Tenth Circuit that the selection of a particular treatment or medicine is not a constitutionally protected right. See Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980) (the Ninth Circuit found that constitutional rights of privacy and personal liberty did not give the plaintiff the right to obtain laetrile free of lawful exercise of government police power); Kulsar v. Ambach, 598 F. Supp. 1124 (W.D.N.Y. 1984) (medical patients had no constitutional right to a drug treatment which the FDA ordered removed from the marketplace).

Similarly, the California Supreme Court held that the right to obtain drugs of unproven efficacy is not a fundamental right. People v. Privitera, 23 Cal. 3d 697, 591 P.2d , 153 Cal. Rptr. 431, 5 A.L.R.4th 178, cert. denied, 444 U.S. 949 (1979). In Privitera, defendants were convicted of conspiracy to sell and to prescribe the unapproved drug laetrile intended for the alleviation or cure of cancer. Id. at 921. Defendants claimed the California statute violated the right of privacy protected by the federal and California constitution. Id. The court stated:

Whether cancer patients especially advanced cancer patients who have unsuccessfully sought relief from conventional therapy and who are fully informed as to the consensus of scientific opinion concerning the drug should have access to laetrile is clearly a question about which reasonable persons may differ. It is not our function to render scientific or legislative judgments. Rather, we must resolve a narrow question: Does the challenged legislation bear a reasonable relationship to the achievement of the legitimate state interest in the health and safety of its citizens? We conclude section 1707.1 does satisfy this standard and that it therefore does not encroach upon the federal constitutional right of privacy.

Id. at 925-26.

Here, Respondent asserts a constitutionally protected interest in having his physician prescribe marijuana, an unapproved drug which is regulated as a Schedule I controlled substance, for medical treatment. In an equally compelling case, the United States Supreme Court recently held that terminally ill patients do not have a constitutionally protected right to physician-assisted suicide nor do they constitute a suspect class for purposes of an equal protection analysis.⁸ Vacco v. Quill, 117 S. Ct. 2293, 2296 (1997). Thus, it is apparent from the case law that although the Respondent is facing a terminal illness, he is not part of a suspect class nor does he have a fundamental right to have marijuana prescribed as his preferred treatment over the legitimate objections of the state.

Respondent argues that if this court does not apply the strict scrutiny analysis then the heightened or intermediate scrutiny should apply. Under intermediate scrutiny the legislation must further a substantial interest of the state. State v. Coria, 120 Wn.2d 156, 170, 839 P.2d 890 (1992). However, Respondent cites no authority supporting his assertion that the right to access an unapproved, controlled substance as treatment for a medical condition is an "important right” or that cancer patients are a semisuspect class. As noted above, other courts have applied a rational basis analysis where terminally ill patients have asserted a right to be treated with an unapproved drug. Carnohan, 616 F.2d at 1122; Privitera, 591 P.2d at 925-26. Moreover, this court and other state and federal courts have consistently applied the rational basis test when deciding whether marijuana’s classification as a Schedule I controlled substance violates equal protection. See generally Smith, 93 Wn.2d 329; National Org. for the Reform of Marijuana Laws (NORML) v. Bell, 488 F. Supp. 123 (D.C. Cir. 1980); State v. Hanson, 364 N.W.2d 786 (Minn. 1985). Thus, the rational basis test is the appropriate standard against which to test the challenged legislation.

Under the rational basis test the challenged law must be rationally related to a legitimate state interest. The legislation will be upheld unless the classification rests on grounds wholly irrelevant to the achievement of a legitimate state objective. State v. Shawn P., 122 Wn.2d at 561. Legislative acts are presumed constitutional and this court will not find otherwise unless proved so beyond a reasonable doubt. Id. The rational basis test requires only that the means employed by the statute be rationally related to legitimate state goals, and not that the means be the best way of achieving that goal. Id. In looking for a rational relationship the court may assume the existence of any necessary state of facts which it can reasonably conceive. Smith, 93 Wn.2d at 336. The party challenging the legislation "must show, beyond a reasonable doubt, that no state of facts exists or can be conceived sufficient to justify the challenged classification, or that the facts have so far changed as to render the classification arbitrary and obsolete.” Id. at 337.

On its face, the classification of marijuana does not treat anyone differently than anyone else or draw any distinctions between persons. Everyone, regardless of their medical condition, is prohibited from obtaining the substance. " 'Generally speaking, laws that apply evenhandedly to all "unquestionably comply” with the Equal Protection Clause.’ ” Vacco, 117 S. Ct. at 2298 (quoting New York City Transit Auth. v. Beazer, 440 U.S. 568, 587, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979)).

Respondent argues that (1) no rational basis exists for classifying marijuana as a schedule I controlled substance, and (2) comparable drugs such as cocaine, morphine, and methamphetamines are not similarly classified. First, we will address Respondent’s contention that marijuana’s placement on schedule I is irrational because it is an effective medical treatment for the nausea and vomiting associated with chemotherapy.

To support his argument that marijuana’s classification is purely arbitrary, Respondent cites to an opinion and recommended ruling by administrative law judge (ALJ) Young in response to a petition by NORML before the Drug Enforcement Administration (DEA) to reschedule marijuana, asserting that the drug had an accepted medical use.⁹ Judge Young heard testimony and reviewed evidence on both sides of the issue. In September 1988, Judge Young issued his ruling and concluded:

The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.

CP at 24, In re Marijuana Rescheduling Pet., Opinion & Recommended Ruling, Findings of Fact, Conclusions of Law & Decision of ALJ at 68 (Dep’t Justice, Drug Enforcement Admin., 1988) (No. 86-22). Based on Judge Young’s ruling, Respondent asks this court to determine that retaining marijuana in schedule I is arbitrary, and, therefore, unconstitutional under art. I, § 12 of the Washington Constitution.

The Administrator of the DEA, however, did not follow the ALJ’s recommended ruling and retained marijuana on schedule I. The ALJ determined that a respectable minority of physicians who advocated marijuana’s medical use was sufficient to show that marijuana had an "accepted medical use.” CP at 24. The Administrator declined to follow the ALJ’s standard for "accepted medical use” because it lacked scientific credibility.¹⁰ CP at 24. During the administrative process an extensive evidentiary record was developed which included a great deal of expert testimony for and against changing marijuana’s rescheduling. The Administrator found the evidence submitted and relied upon by experts supporting the reclassification of marijuana to schedule II was anecdotal, and, therefore, did not warrant a change in marijuana’s classification.

Furthermore, scientifically reliable evidence showed that currently available therapies are more effective and do not carry with them the same risks which are attributable to marijuana. The Administrator’s decision to retain marijuana in schedule I was upheld by the United States Court of Appeals for the District of Columbia in Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994). For this court to rely on the recommended ruling by the administrative law judge would be the equivalent of relying on a decision by a trial court which has been reversed on appeal.

The only case law the Respondent cites to support his position is a Washington Court of Appeals decision, State v. Diana, 24 Wn. App. 908, 604 P.2d 1312 (1979). Respondent’s reliance on Diana, however, is misplaced as the court did not address the constitutionality of marijuana’s scheduling. The Court of Appeals in Diana recognized that, under limited circumstances, an individual may assert a medical necessity defense to a criminal marijuana possession charge. Id. at 913. The recognition of a potential medical necessity defense for criminal liability of marijuana possession is not relevant in this equal protection analysis.

This court and other federal and state courts have reviewed evidence similar to that which has been submitted in this case and have all upheld the constitutionality of marijuana’s classification. We upheld marijuana’s classification as a controlled substance on equal protection grounds in Smith, 93 Wn.2d 329. In Smith, individuals ap pealing criminal convictions made a facial equal protection challenge to the Legislature’s classification of marijuana, providing evidence to the court advocating marijuana’s safety. Finding that experts disagree regarding the seriousness of marijuana’s effects, we refused to substitute our judgment for that of the Legislature. Id. at 337. We emphasized the Legislature’s right to exercise its police power to regulate the prescription and use of dangerous drugs and found that marijuana’s classification was reasonably related to the legitimate interests of the state. Id. at 338-39.

In State v. Dickamore, 22 Wn. App. 851, 592 P.2d 681 (1979), the Court of Appeals rejected a similar equal protection challenge, stating:

[S]o long as scientists disagree about the effect of marijuana, the legislature is free to adopt the opinions of those scientists who view marijuana as harmful. We will not substitute our judgment for that of the legislature where the statute in question bears a rational relationship to a legitimate legislative purpose.

Id. at 855.

Although not an equal protection challenge, this court discussed marijuana’s schedule I classification in State v. Palmer, 96 Wn.2d 573, 637 P.2d 239 (1981). We held that the state board of pharmacy did not abuse its discretion when it declined to remove marijuana from schedule I in view of testimony that there was not a general, accepted medical use for marijuana, although some doctors had recommended its use to patients for the treatment of some diseases. Id. at 575-77.

Within a month of the Palmer decision this court also addressed another appeal from a marijuana conviction in State v. Whitney, 96 Wn.2d 578, 637 P.2d 956 (1981). In Whitney, this court rejected the argument that after the enactment of the Controlled Substances Therapeutic Research Act in 1979, marijuana’s classification as a schedule I drug no longer had a rational relationship to a legitimate state purpose. Appellant stated that the Research Act¹¹ recognized potential medical uses of marijuana for cancer and glaucoma sufferers and noted that marijuana can be in schedule I only if it has no accepted medical use. Id. at 583. We found the legislation did not manifest a finding that marijuana has an accepted medical use or that it is safe for use under medical supervision and held that the retention of the drug in schedule I was reasonably related to a legitimate state purpose. Id. Thus, Washington appellate courts have already examined and upheld the rationality of the Legislature’s placement of marijuana in schedule I in light of any potential medical use.

Federal and state courts have also uniformly upheld the classification of marijuana as a controlled substance against equal protection challenges.¹²

The State maintains that placing marijuana in schedule I is rationally related to the state’s dual interest in controlling potential drug abuse and assuring efficacy and safety in medicines. Respondent argues that placing marijuana in schedule I is not rationally related to the State’s purpose of preventing drug abuse. Respondent maintains that placing marijuana in schedule II could not possibly contribute to the drug abuse problem because marijuana would be available only by prescription. However, the Legislature could reasonably consider marijuana’s widespread availability and its pattern of abuse as requiring a different legislative response than to other substances. "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical, 348 U.S. 483, 488, 75 S. Ct. 461, 99 L. Ed. 2d 563, reh’g denied, 349 U.S. 925 (1955).

Respondent also contends that the placement of marijuana in schedule I is irrational because it is a safe and effective medicine for controlling the vomiting and nausea associated with cancer chemotherapy. He argues that marijuana has an "accepted medical use” and, therefore, cannot be placed in schedule I. Respondent relies primarily on the testimony of Dr. Lester Grinspoon, associate clinical professor of psychiatry at Harvard Medical School and specialist in psychoactive drugs, and Dr. Ernest Conrad, an orthopedic physician at the University of Washington School of Medicine and Mr. Seeley’s treating physician for nine years.

Dr. Grinspoon offered testimony advocating the safety and benefits of using marijuana as a medicine. He contends that marijuana is one of the safest drugs available, stating there has never been a documented overdose. Based on anecdotal testimony from cancer patients, Dr. Grinspoon contends that marijuana is more effective than other new generation antiemetic drugs such as ondanse-tron. Dr. Grinspoon admits that smoking marijuana carries the same risks associated with smoking cigarettes and that marijuana may contain even more particulate matter than cigarettes. However, he notes that a cigarette smoker smokes cigarettes in far greater quantities than a cancer chemotherapy patient, who will smoke a marijuana cigarette only until the nausea symptoms subside.

The Respondent also offered testimony of his physician, Dr. Ernest Conrad, who stated that he would prescribe marijuana if it were legally available. Dr. Conrad maintained that for some of his patients, including Mr. Seeley, smoking marijuana is an effective means to control the nausea and vomiting associated with cancer chemotherapy. He admits that his opinions are not based on scientific evidence but, rather, on claims of patients who have found that it alleviates their symptoms.

In response, the State provided testimony of several physicians who do not advocate the use of marijuana as a medicine. Dr. Janet Lapey, a pathologist and executive director of Concerned Citizens for Drug Prevention, has also studied the scientific research and medical literature regarding marijuana’s potential use as a medicine. However, unlike Dr. Grinspoon, she has concluded that marijuana has no currently accepted use in the treatment of any medical condition. Dr. Lapey notes that marijuana is a complex mixture of over-400 chemicals, which increases to 2,000 when smoked. Among those 400 chemicals, there are at least 61 identified cannabinoids, the active ingredients in marijuana. The amount of the active ingredients, including THC, can vary depending on the growing condition of the plant. Dr. Lapey explains that to gain approval as a medicine a substance must be capable of precise chemical quantification of all ingredients. Dr. Barry Logan, a toxicologist for the State of Washington, explains that with a marijuana plant there is no way to create a standardized dosing system because there is no singularly identifiable and/or chemically consistent plant. Thus, he concludes this quality renders the plant form of marijuana incapable of establishment of standards for the accepted safety for use in treatment under medical supervision.

Dr. Lapey also notes that marijuana has been rejected as a medicine by the American Medical Association, the American Cancer Society, the National Multiple Sclerosis Society, the American Glaucoma Society, the Food and Drug Administration, and the American Academy of Ophthalmology. Dr. Lapey states that no scientifically credible evidence exists which supports the conclusion that marijuana is an effective medicine. Dr. Lapey maintains that when compared against other currently available medications there is no support for using marijuana as a medicine.

Dr. Daniel Brookoff, a specialist in medical oncology, also testified that marijuana is not an effective medication. He states that in the last 15 years other drugs, such as ondansetron, have been developed that have proved to be safer and far more effective in treating the nausea and vomiting associated with chemotherapy.¹³ He maintains that these drugs have proved to be safe and effective for both adults and children and, generally, produce only mild side effects. Dr. Brookoff notes that although the synthesized form of THC has been shown to have some antinausea effects, it has found limited use because it is not particularly effective. It is used only as a third line of treatment, administered only when other drugs have failed. Mr. Seeley’s physician, Dr. Conrad, also gave testimony supporting Dr. Brookoff’s statements. Dr. Conrad also stated that ondansetron has proven to be a more effective drug in the last few years for chemotherapy than other drugs and that most medical oncologists will use Marinol, synthesized THC, only when other drugs have not proven to be effective.

Dr. Brookoff stated that for physicians the issue of whether inhaled marijuana should be used as an anti-emetic was settled in 1984 when Dr. Levitt and colleagues conducted a randomized, double-blind comparison of synthesized THC and marijuana for the treatment of nausea and vomiting associated with chemotherapy.¹⁴ The study found that neither substance was particularly effective in treating nausea and vomiting with 75 percent of patients in both groups still suffering significant nausea and vomiting. Moreover, among those who found the substances to be effective, the majority preferred the synthesized form of THC as opposed to marijuana. Dr. Brookoff states that marijuana adds nothing to the limited benefits of synthesized THC. Marijuana does, however, have negative side effects not associated with synthesized THC. Because marijuana is smoked it contains carcinogens and particulate matter associated with cigarette smoking and the danger of infection from fungus,¹⁵ which is often found in marijuana cigarettes. Dr. Lapey notes that even when a person smokes fewer than one marijuana cigarette per day, significant changes in pulmonary function and respiratory function are found.¹⁶

Dr. Brookoff maintains that any potential benefits from the use of marijuana have been eclipsed by the development of safer and more effective drugs.¹⁷ Thus, he concludes that there is no therapeutic use for marijuana.¹⁸ All that is left are the hazards associated with smoking marijuana, which include lung disease, cardiac dysfunction, brain damage, genetic damage, immune disorders and psychomotor impairment. Additionally, Dr. Brookoff notes that in 1994 various components of the National Institutes of Health conducted a review of the scientific literature concerning the therapeutic uses of marijuana. They concluded that no evidence suggests that marijuana is superior to currently available medications for a variety of illnesses including nausea and vomiting associated with cancer chemotherapy and that the risks associated with using smoked marijuana mitigate against its therapeutic use.

The challenged legislation involves conclusions concerning a myriad of complicated medical, psychological and moral issues of considerable controversy. We are not prepared on this limited record to conclude that the legislature could not reasonably conclude that marijuana should be placed in schedule I of controlled substances. It is clear not only from the record in this case but also from the long history of marijuana’s treatment under the law that disagreement persists concerning the health effects of marijuana use and its effectiveness as a medicinal drug. The evidence presented by the Respondent is insufficient to convince this court that it should interfere with the broad judicially recognized prerogative of the legislature. Respondent has not shown that the legislative treatment of marijuana is "so unrelated” to the achievement of the legitimate purposes of the legislature or that "the facts have so far changed as to render the classification arbitrary and obsolete.” See Smith, 93 Wn.2d at 337.

Additionally, Washington’s Uniform Controlled Substances Act contains a mechanism by which evidence may be presented to the board of pharmacy to determine whether a drug should be reclassified. The very existence of this statutory scheme indicates that the Legislature intended flexibility and receptivity to the latest scientific information. This scheme is a sensible mechanism for dealing with a field in which factual claims are conflicting and the state of scientific knowledge is still growing. This is the antithesis of irrationality which the Respondent attributes to the Legislature. See Bell, 488 F. Supp. at 141; United States v. Kiffer, 477 F.2d 349, 357 (2d Cir.), cert. denied, 414 U.S. 831 (1973)). Thus, the determination of whether new evidence regarding marijuana’s potential medical use should result in "the reclassification of marijuana is a matter for legislative or administrative, not judicial, judgment.

Respondent also attacks the rationality of the classification scheme, arguing that it is underinclusive. Respondent makes an equal protection challenge asserting that marijuana’s classification is irrational because other more harmful substances such as cocaine, morphine, and methamphetamines are not similarly classified in schedule I and, thus, can be prescribed by a physician. Respondent also maintains that it is arbitrary to place marijuana in schedule I while classifying the synthetic form of THC, otherwise known as Marinol, in schedule II.

" 'Underinclusive classifications do not include all who are similarly situated with respect to a rule, and thereby burden less than would be logical to achieve the intended government end.’ ” National Org. for the Reform of Marijuana Laws (NORML) v. Bell, 488 F. Supp. 123, 137 (D.C. Cir. 1980) (quoting Laurence H. Tribe, American Constitutional Law § 16-4, at 997 (1978)). To prevail in such a claim the plaintiff must show that the governmental choice is " 'clearly wrong, a display of arbitrary power, not an exercise of judgment.’ ” Id. (quoting Mathews v. de Castro, 429 U.S. 181, 185, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976)). The Court notes that few challengers can overcome this heavy burden of proof. The Court explains that legislative bodies have broad discretion in attacking social ills. " 'A State may "direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.” ’ ” NORML at 137. Thus, the Court concluded that failure to include alcohol and tobacco in the regulatory scheme did not render the statute unconstitutional. Id.19

The Washington Court of Appeals rejected the same argument in Dickamore. The defendant in Dickamore argued that marijuana’s classification violated equal protection because comparable drugs such as nicotine and alcohol are not similarly classified. The court concluded that the Legislature is not constitutionally compelled to regulate or prohibit all harmful substances. Dickamore, 22 Wn. App. at 855 (citing Kiffer, 477 F.2d 349. " 'It may conclude that half a loaf is better than none.’ ” Id. (quoting Kiffer, 477 F.2d at 355). Thus, the court held the classification of marijuana did not violate equal protection.

In light of this policy of legislative freedom when confronting social problems, the exclusion of other potentially more harmful drugs from schedule I does not render the scheme unconstitutional. That cocaine or morphine have adverse health effects does not mean that placing these substances in schedule I is the best means of regulating these substances, or that marijuana should be treated similarly. The fact that cocaine, morphine, and methamphetamines have all been approved for medical use and marijuana has not is sufficient reason for treating the substances differently. Likewise, the synthesized form of THC has been approved for medical use. Marijuana, unlike synthesized THC, contains over 400 different chemicals and there is no way to create a standardized dosing system because there are no chemically consistent plants. The differences between marijuana and synthesized THC, in addition to the health risks associated with inhaled mari juana, justify the Legislature’s decision to treat the substances differently.²⁰

III. Frequent Recurrence to Fundamental Principles Analysis

Respondent asserts that the Legislature’s placement of marijuana in schedule I of controlled substances violates art. I, § 32 of the Washington Constitution, which provides "[a] frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.” Respondent maintains that art. I, § 32 protects the personal liberties of the citizens of Washington to a greater extent than the Federal Constitution and, to this end, provides a Gunwall analysis.

In his analysis of the first two Gunwall factors, Respondent asserts that because there is no equivalent federal counterpart to art. I, § 32 this court should find greater protection under these factors. We agree this provision must necessarily be independently analyzed to determine whether it affords the Respondent protection in this context.

Respondent notes that although art. I, § 32 had historical precedents, the precise language used in the Washington constitution was unique. See Brian Snure, Comment, A Frequent Recurrence to Fundamental Principles: Individual Rights, Free Government, and the Washington State Constitution, 67 Wash. L. Rev. 669, 676 (1992). A reminder to consider "fundamental principles” was originally seen in the first American Declaration of Rights written by George Mason in 1776. See id. (citing Va. Const, art. I, § 15 ("Qualities necessary to preservation of free government.—That no free government, nor the blessings of liberty can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue; by frequent recurrence to fundamental principles.”)). By 1889, nine states adopted similar provisions in their state constitutions. See id21 However, unlike some state constitutions, Washington’s did not limit the return to fundamental principles to those "of the constitution.” See id.22 Thus, Respondent maintains that the framers chose not to include the language of other similar provisions that would limit art. I, § 32 to fundamental principles delineated within the constitution. Additionally, the Washington Constitution diverges from similar provisions by ensuring the " 'security of individual right.’ ” See id. This connection to individual rights was unique to the Washington constitution. See id.

The original proposed Washington Constitution by W. Lair Hill contained only 31 sections in art. I. See id. at 674. Section 32 was proposed by George Turner, whose later speeches as a U.S. Senator lead to the conclusion that Turner, like others of his day, believed that "constitutional interpretation often required a return to natural law principles beyond the four corners of the constitution.” See id. (citing 32 cong. rec. 783, 785, 789 (1899) (statements of Senator Turner against United States imperialism in the Philippines)).

Respondent notes that Brian Snure has argued persuasively that the phrase "frequent recurrence to fundamental principles” suggests that the framers retained the notion that natural rights should be considered when protecting individual rights. See id. at 687. Snure states that "[s]ection 32 designates extra-constitutional fundamental principles as essential to the security of individual rights.” See id. Additionally, Justice Utter, in his concurring opinion in Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wn.2d 413, 439, 780 P.2d 1282 (1989), argued that section 32 was evidence of the framers’ belief in natural law, stating "the notion of fundamental principles was central to natural law theories at the time [the constitution was adopted]. That the principles are not spelled out further indicates that the framers looked to other non-governmental sources for the origin of the rights listed in the constitution.” Id. (citations ommitted). Justice Utter used this clause as a substantive basis for the protection of rights. Id. Thus, Respondent argues that by adopting art. I, § 32 the framers intended to expand the scope of individual rights protected by the constitution.

Whether art. I, § 32 can be used to expand the scope of protection of substantive individual rights beyond those recognized by the state and federal constitution is not clear. The "frequent recurrence to fundamental principles” clause of the Washington Constitution has been used infrequently by the judiciary. It has been cited in approximately 25 opinions, less than half of which are majority opinions. Washington courts have used this provision primarily as an interpretive mechanism. For example, art. I, § 32 has been cited as a reason for analyzing principles supporting a right to privacy, State v. Curran, 116 Wn.2d 174, 188-89, 804 P.2d 558, 566 (1991) (Utter, J., concurring); City of Bremerton v. Smith, 31 Wn.2d 788, 800, 199 P.2d 95 (1948) (Simpson, J., dissenting); the right to free speech, State v. Reece, 110 Wn.2d 766, 790, 757 P.2d 947 (1988) (Utter, J., dissenting), cert. denied, 493 U.S. 812 (1989); the right to an insanity defense, State v. Strasburg, 60 Wash. 106, 113, 110 P.2d 1020 (1910); and the restrictions on search and seizure, State v. Mark, 36 Wn. App. 428, 436, 675 P.2d 1250 (1984) (Ringold, J., addendum opinion); State v. Broadnax, 25 Wn. App. 704, 718, 612 P.2d 391 (1980) (Ringold, J., dissenting).

Article I, § 32 has also been citéd to define principles of state and local government, Goodnoe Hills Sch. Dist. No. 24 v. Forry, 52 Wn.2d 868, 875, 329 P.2d 1083 (1958); Wheeler Sch. Dist. No. 152 v. Hawley, 18 Wn.2d 37, 38, 137 P.2d 1010 (1943); to establish a separation of powers argument, State ex rel. Swan v. Jones, 47 Wn.2d 718, 742, 289 (1955) (Donworth, J., dissenting); State ex rel. Robinson v. Fluent, 30 Wn.2d 194, 240, 191 P.2d 241 (Simpson, J., dissenting), cert. denied, 335 U.S. 844 (1948); and to support the right to an impartial trial, State ex rel McFerran v. Justice Court of Evangeline Starr, 32 Wn.2d 544, 548, 202 P.2d 927 (1949); State v. Espinoza, 51 Wn. App. 719, 722, 754 P.2d 1287 (1988), rev’d. in part by 112 Wn.2d 819 (1989).

Washington jurisprudence has yet to see a consistent approach to art. I, § 32. Nevertheless, Respondent fails to identify a natural right, in existence at the time of the constitution’s adoption, to use marijuana or to choose a particular medical treatment. Instead, it appears the framers intended such discretion to rest in the government as indicated by its adoption of art. XX, § 2. Neither constitutional history nor preexisting state law indicates that using marijuana is a right that the Washington Constitution was designed to protect. Thus, art. I, § 32 was not meant to provide a substantive right to use marijuana for medical treatment free from the lawful exercise of government police power.

CONCLUSION

The privileges and immunity clause of the Washington Constitution does not provide greater protection than the Fourteenth Amendment of the Federal Constitution in the area of drug classification. The texts of the two provisions are similar and have routinely been interpreted by this Court as coextensive. In this case, there is no historical basis to conclude that the framers of the Washington Constitution intended to extend greater rights to citizens of this State to follow a physician-prescribed course of drug treatment free of government regulation than provided under the Federal Constitution. To the contrary, art. XX, § 2 of the Washington Constitution provides: "The legislature shall enact laws to regulate the sale of drugs and medicine . . . .”

Moreover, Washington’s Uniform Controlled Substances Act was intended to be part of a national scheme to enable governments at all levels to more efficiently control problems with drug abuse. Both federal and state statutes list marijuana in Schedule I of controlled substances. Controlled substances listed in Schedule I under federal law may not be prescribed or dispensed anywhere in the United States unless a specific registration to do so is obtained. Thus, marijuana cannot be legally prescribed, nor can a prescription for marijuana be filled by a pharmacist in Washington unless a federal registration is granted.

We agree with the courts, including the Ninth Circuit, the Tenth Circuit, and the California Supreme Court, considering the question of access to unapproved drugs. All have found that the rights of privacy and personal liberty do not establish a fundamental right to drug treatment free of government police power. Accordingly, the regulation here is appropriately analyzed under a rational basis test. Under that test, Respondent has failed to show that the Legislature’s decision regarding classification of marijuana is "so unrelated” to the achievement of legitimate purposes that the classification is arbitrary or obsolete. Respondent can point to no scientific studies which were presented to the Legislature regarding the efficacy of marijuana for medicinal purposes. Additionally, the record in this case does not point to any scientific studies, since the Legislature’s decision to place marijuana in Schedule I, indicating marijuana’s efficacy as a medical treatment. The record, however, does reference scientifically relevant evidence that therapies developed over the last 15 years have proven to be safer and more effective in treating the side effects of chemotherapy than leaf marijuana without the risks attributable to marijuana.

Because substantial evidence is available to support the Legislature’s action, we decline to interfere with the broad judicially recognized prerogative of the Legislature, particularly where the challenged legislation involves a myriad of complicated medical, physiological, and moral issues; and substantial evidence is available to support the Legislature’s action. The debate over the proper classification of marijuana belongs in the political arena.

Finally, we conclude that art. I, § 32’s frequent recurrence to fundamental principles clause, read in conjunction with art. XX, § 2, does not create a right to use marijuana for medical treatment free from the lawful exercise of government police power.

In order to prevail, the Respondent had the burden to show that the Legislature’s placement of marijuana in schedule I was unconstitutional beyond a reasonable doubt. See Smith, 93 Wn.2d at 329. That burden has not been met in this case. Thus, we reverse the Superior Court’s decision and conclude that RCW 69.50.204(c)(14) does not violate art. I, §§ 12, and 32 of the Washington Constitution.

Durham, C.J., and Dolliver, Smith, Guy, Johnson, Alexander, and Talmadge, JJ., concur.

Footnotes

1

In 1994, Mr. Seeley’s physician, Dr. Ernest Conrad, certified that Mr. Seeley qualifies to participate in the research program. The hoard of pharmacy did not allow him to be a part of the program because at the time no funding existed.

2

The Controlled Substances Therapeutic Research Act was not amended in 1996. A hill (SB 6744) was introduced that would have expanded the scope of research permitted under the Legislature’s 1979 enactment of the Research Act; however, that bill died in committee. The appropriation of money to the program does not change the substantive law. See Flanders v. Morris, 88 Wn.2d 183, 558 P.2d 769 (1977).

3

The drug known as Marinol is dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a United States Food and Drug Administration approved drug product. RCW 69.50.206(f)(1). Marinol (dronabi-nol) is on Schedule II under federal law as well. 21 C.F.R. § 1308.12(f)(1) (1996).

4

RCW 69.50.201 provides in relevant part:

(a) The state hoard of pharmacy shall enforce this chapter and may add substances to or delete or reschedule all substances [enumerated] .... [i]n making a determination regarding a substance, the board shall consider the following:

(i) the actual or relative potential for abuse;

(ii) the scientific evidence of its pharmacological effect, if known;

(iii) the state of current scientific knowledge regarding the substance;

(iv) the history and current pattern of abuse;

(v) the scope, duration and significance of abuse;

(vi) the risk to the public health;

(vii) the potential of the substance to produce psychic of physiological dependence liability; and

(viii) whether the substance is an immediate precursor of a controlled substance.

5

Under the parallel federal administration process, the Drug Enforcement Administration (DEA) performs similar functions.

6

Washington modeled its privileges and immunities clause after Oregon’s privileges and immunities clause, art. I, § 20, which provides: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” The Oregon Supreme Court in State v. Clark, 291 Or. 231, 630 P.2d 810, cert. denied, 454 U.S. 1084 (1981), analyzed the privileges and immunities clause by asking four questions: was the challenged state action properly performed under lawful authority; does the action implicate a "privilege” or "immunity”; does the action allegedly discriminate against an individual or a class; and, if so, is the discrimination permissible? See also David Schuman, The Right to "Equal Privileges and Immunities": A State’s Version of "Equal Protection," 13 Vt. L. Rev. 221, 229 (1988). An "equal privileges and immunities” clause appears in the constitutions of 15 states. Schuman, supra at 223. Oregon is the only state which has given an independent analysis under its state privileges and immunities clause. Id. at 225-26.

7

The majority in State v. Smith, 117 Wn.2d 263, 281, 814 P.2d 652 (1991), found that art. I, § 12 of the Washington Constitution and the Equal Protection Clause of the Federal Constitution were substantially similar and declined to interpret art. I, § 12 independently of the Fourteenth Amendment. Justice Utter concurred in the result, finding, however, that a separate analysis was warranted under the state constitution after an analysis of the factors in Gunwall. Id. at 284-87. He proceeded to adopt the analysis of the Oregon Supreme Court in Clark. Id. at 287-91.

8

The Supreme Court in Vacco v. Quill, 117 S. Ct. 2293 (1997), found that New York’s law prohibiting physician-assisted suicide was rationally related to legitimate state objectives and, thus, did not violate equal protection.

9

Like its state counterpart, a substance will be classified in Schedule I under the federal scheme if the substance has (1) a high potential for abuse, (2) no currently accepted medical use in treatment in the United States, and (3) no accepted safety for use in treatment under medical supervision. 21 U.S.C. § 812(b)(1) (1981).

10

The DEA’s final administrative order set forth criteria for evaluating the validity of scientific research and evaluated the scientific evidence presented by both side against these criteria. Certain scientific practices have been generally accepted by the scientific community which are designed to increase the validity of experimental studies. Studies or research projects which do not follow these accepted scientific practices have very limited, if any, credibility. A review of such studies must first examine the degree to which researchers control, or hold constant, the variables which could affect the results, except the variable being studied. The second factor is the placebo effect, which is the tendency of research subjects to act and respond in a manner they believe is expected of them. To eliminate this factor, research subjects are usually "blinded,” or not informed of what drugs they are receiving. Results of non-blinded studies are questionable since they could be attributable, in large part, to psychological reactions rather than any real effects from the experimental drug. The next factor which must be minimized or eliminated for a research study to be valid is the exception of the researcher.

In addition to the factors related to the design and execution of a research study, there are two other factors which must he reviewed in evaluation of a research study. Research results are always considered tentative or preliminary until they have been replicated or confirmed by another researcher. The research study must be reported in sufficient detail to permit others to repeat it. Finally, publication of a study in a scientific journal, especially a journal which subjects an article to review prior to publication, adds validity to a study. Journal publications subject a study to review and scrutiny by the scientific community and open the door to replication of the studies. Unpublished studies are inherently suspect. Marijuana Scheduling Pet., 54 Fed. Reg. 53, 767-78 (DEA 1989) (Denial of Pet.).

11

The Controlled Substances Therapeutic Research Act placed marijuana in Schedule II only for purposes of the research program.

12

See United States v. Burton, 894 F.2d 188 (6th Cir.), cert denied, 498 U.S. 857 (1990); National Org. For the Reform, of Marijuana Laws v. Bell, 488 F. Supp. 123 (D.C. Cir. 1980); United States v. Astling, 733 F.2d 1446 (11th Cir. 1984); United States v. Fogarty, 692 F.2d 542 (8th Cir. 1982), cert. denied, 460 U.S. 1040 (1983); United States v. Gramlich, 551 F.2d 1359 (5th Cir.), cert. denied, 434 U.S. 866 (1977); United States v. Spann, 515 F.2d 579 (10th Cir. 1975); United States v. Kiffer, 477 F.2d 349 (2d Cir.), cert. denied, 414 U.S. 831 (1973); United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972), cert. denied, 410 U.S. 985 (1973); State v. McManus, 718 S.W.2d 130 (Mo. 1986); State v. Price, 495 So. 2d 389 (La. Ct. App. 1986), writ denied, 499 So. 2d 84 (La. 1987); State v. Olson, 127 Wis. 2d 412, 380 N.W.2d 375 (1985), review denied, 128 Wis. 2d 566 (1986); State v. Hanson, 364 N.W.2d 786 (Minn. 1985); State v. Stallman, 673 S.W.2d 857 (Mo. Ct. App. 1984); State v. Kelly, 106 Idaho 268, 678 P.2d 60, cert. denied, 469 U.S. 918 (1984); State v. Ennis, 334 N.W.2d 827 (N.D.), cert. denied, 464 U.S. 992 (1983); Isbell v. State, 428 So. 2d 215 (Ala. Crim. App. 1983); People v. Schmidt, 86 Mich. App. 574, 272 N.W.2d 732 (1978).

13

Dr. Brookoff explains that drugs used in chemotherapy cause nausea hy stimulating an area of the hrain called the chemoreceptor trigger zone. He states that the most successful group of anti-nausea drugs have been the recently introduced medications which block serotonin receptors in the chemoreceptor trigger zone.

14

This report is published in 3 Proceedings of the American Society of Clinical Oncology 91 (1984).

15

See Clerk’s Papers (CP) at 492-93 (Sharon Sutton et. al., Possible Risk of Invasive Pulmonary Aspergilliosis With Marijuana Use During Chemotherapy For Small Cell Lung Cancer, 20 Drug Intelligence & Clinical Pharmacy (Apr. 1986)).

16

Dr. Lapey included articles to support her opinions concerning the effects of marijuana smoking on the pulmonary system. See CP 483-91 (Duane L. Sherrill et al., Respiratory Effects of Non-Tobacco Cigarettes: A Longitudinal Study in General Population, 20 Int’l J. of Epidemiology, 132-37 (1991); Suzanne E.G. Fligiel et al., Marijuana Exposure and Pulmonary Alterations in Primates, 40 Pharmacology, Biochemistry & Behav., at 637-42 (1991)).

17

Dr. Brookoff stated that he, along with other physicians, participated in treatment trials using inhaled marijuana in the late 70s and early 80s because, at the time, there was no better alternative.

18

Dr. BrookofFs opinions were reiterated by Kelly Martin, an oncology pharmacist specialist at St. Joseph Medical Center in Tacoma.

19

Other federal courts have considered and rejected the argument that marijuana’s classification is irrational in relation to other substances. United States v. Greene, 892 F.2d 453 (6th Cir. 1989), cert. denied, 495 U.S. 935 (1990); United States v. Fry, 787 F.2d 903 (4th Cir.), cert. denied, 479 U.S. 861 (1986); United States v. Maiden, 355 F. Supp. 743 (D.C. Conn. 1973); United States v. Fogarty, 692 F.2d 542 (8th Cir. 1982), cert. denied, 460 U.S. 1040 (1983); United States v. Middleton, 690 F.2d 820, 823 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983); United States v. Kiffer, 477 F.2d 349 (2d Cir.), cert. denied, 414 U.S. 831 (1973).

20

The American Civil Liberties Union, in an amicus brief before this Court, argues that marijuana’s classification violates due process. The parties, however, have not raised this issue in their briefs and the issue was not considered by the trial court. This Court has recognized that it need not address issues raised solely by an amicus or issues not raised at the trial court unless it is necessary to reach a proper decision. See Harris v. Dep’t of Labor & Indus., 120 Wn.2d 461, 469-70, 843 P.2d 1056 (1993). In this case, an analysis under the due process clause will not change the result. Under both an equal protection and a due process challenge the analysis and the result are the same. See NORML, 488 F. Supp. at 134 n.29 (citing Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)) (the due process clause of the Fifth Amendment requires that legislation satisfy the same standards of equal protection of the law that are guaranteed by the Fourteenth Amendment). Courts which have heard due process challenges have applied a rational basis test and have repeatedly found that a person does not have a due process right to access an unapproved medicine free from government control and have upheld the rationality of marijuana’s classification. See Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980) (constitutional right of privacy and personal liberty do not give an individual the right to obtain medicine free from the lawful exercise of government police power); People v. Privitera, 23 Cal. 3d 697, 591 P.2d 919, 925-26, 153 Cal. Rptr. 431, 5 A.L.R.4th 178 (due process right to privacy is not violated where statute proscribing the distribution of a drug to be used in the alleviation or cure of cancer bore a rational relationship to the achievement of a legitimate state interest in the health and safety of its citizens), cert. denied, 444 U.S. 949 (1979); United States v. Rutherford, 442 U.S. 544, 547, 99 S. Ct. 2470, 61 L. Ed. 2d 68 (1979) (due process right to privacy is not violated because a patient’s selection of a particular treatment is within the area of governmental interest in protecting public health); see also Bell, 488 F. Supp at 134 (marijuana’s classification withstood due process challenge); Fry, 787 F.2d 903 (marijuana’s classification did not violate due process); State v. Dickamore, 22 Wn. App. 851, 854-55, 592 P.2d 681 (1979) (marijuana’s classification did not violate due process). Additionally, a case relied upon heavily by amicus, Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996), which held that a terminally ill individual has a fundamental right to hasten one’s death through physician-assisted suicide, was recently overruled by the United States Supreme Court. Washington v. Glucksberg, 117 S. Ct. 2258 (1997). In overruling the Ninth Circuit’s decision, the Court emphasized that it has " 'always been reluctant to expand the concept of substantive due process,’ ” id. at 2267, and that it will do so only when necessary to protect those "fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation’s history and tradition’ . . . such that 'neither liberty nor justice would exist if they were sacrificed.’ ” Id. at 2268 (citations omitted); see also San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 30, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (courts must look to the Constitution, not the "importance” of the asserted right, when deciding whether an asserted right is "fundamental”). In the face of this recent Supreme Court decision, finding that a terminally ill person does not Have a fundamental right to physician-assisted suicide, it appears that a terminally ill patient would not then have a constitutionally protected right to receive a particular medical treatment over the rational objections of the state.

21

Ill. Const, art. II, § 23; Mass. Const, pt. 1, art. 18; N.H. Const, pt. 1, art. 38; N.C. Const, art. I, § 35; Ohio Const, art. VIII, § Í8 (repealed 1851); Va. Const, art. I, § 15; Vt. Const, ch. I, art. 18; W. Va. Const, art. Ill, § 20; Wis. Const, art. 1, § 22. In 1889 South Dakota adopted a similar provision. S.D. Const, art. VI, § 27. Since 1889, Arizona and Utah have adopted provisions almost identical to Washington’s fundamental principles provision. Akiz. Const. art. 2, § 1; Utah Const, art. 1, § 27.

22

Massachusetts’ and New Hampshire’s fundamental principles provisions both call for "a frequent recurrence to the fundamental principles of the constitution.” Mass. Const, pt. 1, art. 18; N.H. Const, pt. 1, art. 38.