By P J Klosinski
Here we are again Indiana has finally advanced the use of a controversial substance for the treatment of “intractable epilepsy”. I am using my first article and incorporating changes to the bill which have resulted in what we now have because the foundation individuals are dealing with remains.
WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. How often we have heard these words yet few of us comprehend to what extent they fundamentally impact our very existence. To an individual besieged by a disease, the inalienable right to a life is a fight for survival on a daily basis. Self-determination and the method each chooses to maintain their ultimate property right of health cannot be confiscated by government.
Who has the right to claim superiority over the individual in determining health care?
Why can government determine it has the authority to control an inalienable right? There is a Constitution guaranteeing the inalienable right to life against legislative interference through laws. Since each individual is the sole possessor of their life why would one need to acquire government permission to access health care medication?
The Hierarchy of Law controlling Indiana government is the Constitution of the United States and of this state and all statutes of the general assembly of the state in force, and not inconsistent with such constitutions. The Oath of office as prescribed in Article 15 Section 4 states “Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office”. The language is ordinary and plain laws cannot be inconsistent with the constitutions. The solemn Oath elected officials are required to take binds them as our representatives to abide by the same rule of law governing all.
What is the conflict over authority?
For years there have been conflicts over marijuana a substance which government has classified illegal. For years there have been questions by the people. Why is it illegal? Where is the authority for government to decide it is harmful? Why does government believe it is in the best interest of the individual to punish them for using a substance when use causes harm to no one else? Why when the Indiana Constitution states in “ Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.” does government refuse to retreat from the position that government is in charge of determining the possession and use of marijuana?
How is government responding to the demand to legalize use of marijuana?
The response from Indiana has been a series of bills over years claiming to address the issues of marijuana use, possession, growth and anything else to do with what is essentially vegetation. This year one bill finally made it out of committee on a 5yea 3 nay vote. SB 15 originally called Hemp extract for the treatment of epilepsy is now defined as Cannabidiol treatment. Indiana defines who and for what purpose this time cannabidiol defined as an extract or mixture or preparation containing cannabis plant material can be legally qualified for medical use. State Senators passing a law legalizing a substance government has no authority to regulate is an interesting concept of compliance with the constitutional oath each swore to uphold.
Who decides what substance, access, disease, possession, administration and regulation?
SB 15 Defines Cannabidiol ” means an extract from a cannabis plant or a mixture or preparation containing cannabis plant material that: is composed of not more than three-tenths percent (0.3%) tetrahydrocannabinol (THC) by weight; is composed of at least five percent (5%) cannabidiol by weight; and contains no other controlled substances.” The original composition was “hemp extract” means a substance containing: three-tenths percent (0.3%) or less tetrahydrocannabinol (THC) by weight; at least ten percent (10%) cannabidiol by weight; and no other controlled substances.” Apparently, Indiana has determined less cannabidiol is sufficient for treatment or is the reduction a means to appease concerns from the impact of this legislation on members chance for retaining their elected position? Why should treatment decisions between a patient and physician be limited by Indiana? Who has the right to determine what treatment is most appropriate?
Indiana via SB 15 establishes a Cannabidiol registry through the state department of health for certain physicians, nurses, individuals, and caregivers determining their suitability for involvement in the state program and registering them as approved for the program. “The cannabidiol registry must include a secure, electronic online database that is accessible by law enforcement agencies in order to verify the registration of an individual.” Additional job responsibilities including registry and regulation might require additional employees and a larger budget for the state department of health. Law enforcement agency access is not limited to Indiana.
Indiana lawmakers determine that the only allowable disease considered for treatment is “intractable epilepsy” a seizure disorder that has been diagnosed by a physician in a patient who has not responded to at least three (3) other seizure disorder treatment options.
Indiana lawmakers decide that the approved definition of a patient is a “patient” refers to an individual who has been diagnosed with intractable epilepsy by a physician licensed by Indiana and board certified in neurology. Gone is the former patient definition describing an individual : less than eighteen (18) years of age; or at least eighteen (18) years of age but started treatment with hemp extract described under this chapter when the individual was less than eighteen (18) years of age; and who has been diagnosed with intractable epilepsy by a physician.” With the changes to HB 15 Indiana has extended the special privilege to a more inclusive group of special people with a certain disease while excluding all other individuals from equal access for treatment.
Indiana state department of health shall register a physician or nurse who meets the government requirements, completes a registration form and pays a registration fee. A patient or caregiver shall be issued a registration card if specified requirements are met including age, being a patient, being an Indiana resident, providing a certified statement by a registered physician confirming program requirements and paying the registration fee. The caregiver application for registration also requires meeting specified conditions for approval. Registration is valid for one year or as requested by physician and renewals charge a fee. There are also requirements for dispensing cannabidiol concerning a pharmacist.
Following patient or caregiver registration the state department shall contact and provide the local health department the name, address and any other identifying information the state determines necessary to provide.
Provisions are also included for a pilot study registry for monitoring research performed by a state educational institution. There are requirements for submitting an application to be included in the pilot study program and standards for conducting research. The pilot study program is directed at the safety and efficacy of using cannabidiol in the treatment of intractable epilepsy. Newly added is a requirement that “The state department shall study whether the registration under section 7 of this chapter should, based on sound medical findings, be extended to other individuals with intractable medical conditions.” This could allow consideration to include other diseases as being qualified for treatment. But that would likely require more action by the Indiana Legislature unless the administrative authority of the department of health would include the ability without further legislation to administer such changes to the program.
Indiana provides a defense to Indiana prosecution under this chapter for individuals who are properly registered when certain requirements are met. HB 15 does not address any prosecutions under federal laws.
What do we conclude from the actions of Indiana?
The constitutions are the law of the land for Indiana and since our elected legislators are bound by solemn oath to uphold the terms of those documents perhaps we should begin to ask serious questions. No constitutional provision mandates that government has been granted the authority to control the quality of life of the individual through approval and licensing of health care decisions.
This bill would help some individuals with only one specified malady, however, to accomplish this goal Indiana is violating “Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” Legislators are granting to a select group of individuals the special privilege of relief from a specific disease, such relief equally belongs to all citizens.
The bill fails to cite the constitutional authority to regulate marijuana substances but criminalizing was also done without specified authority. A republic limits the authority government has over conduct of an individual it does not limit or license inalienable rights which belong to each individual through our very existence. Life is a Right and the quality of that life is an individual possession which does not require government registration, permission or approval. Life and health issues belong to the individual.
HB 15 neglects to address how Indiana permission to use a controlled substance will impact the Qualified individual in a right guaranteed protection by the Constitutions. The Right to self-protection through the ownership and carrying of a firearm is automatically denied. The Ninth Circuit Court of Appeals recently upheld a lower court decision that just by having a medical marijuana card precludes an individual from keeping and bearing arms. Findings were based not only on the federal laws that still make marijuana users criminals even if the individual resides in a state where medical marijuana is legal but also on an “open letter” from ATF stating the federal prohibition from allowing the firearm sale to be completed.
Relief from debilitating medical condition could be permissible by Indiana for some but because the federal government considers marijuana an illegal substance you are not allowed to provide yourself with protection. Life is a right, not a government qualified for compliance privilege.
SOURCES:
http://www.diffen.com/difference/Democracy_vs_Republic
http://www.law.indiana.edu/uslawdocs/inconst.html
http://codes.findlaw.com/in/title-1-general-provisions/in-code-sect-1-1-2-1.html