As Jonathan Adler noted on the Volokh Conspiracy, the individual right that was weighed by the DC Circuit was framed in the language of Washington v. Glucksberg (which, in turn, comes from Palko v. Connecticut): a right that is “deeply rooted in this Nation’s history and tradition,” and is “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” But how do we recognize such a right when we see one?
There is, as the court notes on p. 13 of the opinion, disagreement about how narrowly one should describe the right to be protected — whether it ought to be, per Scalia, characterized at the “most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified,” or whether, as other Justices have argued, more broadly characterized rights can qualify for protection. In the homosexual sodomy context, of course, this was a big deal: Where Bowers v. Hardwick described the right it was analyzing as the “right of homosexuals to engage in acts of sodomy” 478 U.S. 186, 191 (1986), Lawrence v. Texasconsidered the same thing but spoke about it in more general, universal terms, and explicitly addressed the way Bowers had treated the right at stake:
[Bowers’ characterization of the right], we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
The Alliance, in Eschenbach, actually characterized the right it was asserting quite narrowly, and the court noted that the Alliance did not assert 1)unfettered right of access to all new or investigational new drugs or 2)a right to receive treatment from the government or at government expense. Ultimately the asserted right came down to “ask[ing] only that the decision to assume these known or
unknown risks [from using drugs that had not achieved post Phase I approval] be left to the terminally ill patient and not to the FDA.” (14) The question that may remain open, however, is whether a right characterized more broadly — such that it would include terminally ill individuals’ access to unapproved drugs — might qualify for due process protection.
This might not be such a crazy possibilty because, as the court notes, the right to control over one’s own body has deep roots in the law, whereas the regulatory regime of the FDA is actually a relatively new development. So while if one were to characterize the right to use medical marijuana quite narrowly — as “the right to become intoxicated,” to take a sort of ridiculous example, or as “a right to access experimental drugs” as the Eschenbach dissent puts it (p. 2) — it might seem to be unworthy of protection, a broader characterization of the right in terms of individual autonomy and the ability to control one’s own body (cf. Cruzan) might gain some traction. And there’s no reason not to pitch the right broadly in this fashion even if it does run headlong into the regulation of drugs. As the court notes, “the government’s interest in regulating has no bearing upon the identification of a fundamental right.” For that reason, the dissent’s identification of the right seems problematic — it imports the government interest (which is what makes a drug “experimental” in the first place, contrary to the dissent’s assertion on p. 23 that “these drugs are experimental by their very nature”) into the definition of the individual right being evaluated, thereby presuming the validity of the very regulatory regime that is being challenged.
If a court were to recognize the use of medical marijuana as a right worthy of due process protection, then the question would then shift to the government interest. And the debate would then be, I suppose, whether the government interest in protecting individuals from (ostensibly) harming themselves by using a Schedule I substance could outweigh those individuals’ right to physical autonomy. I could see that courts still might rule against proponents of medical marijuana if that were the way the question was posed, but it’s at least up for argument.
All of this matters because Raich, while upholding the government’s power to regulate medical marijuana under the commerce clause, explicitly declined to deal with the potential due process considerations — as the DC Circuit noted in footnote 9. Indeed, on remand to the Ninth Circuit, Raich is being argued in terms of due process “rights to make life-shaping decisions, preserve bodily integrity and avoid severe pain.” And the attorneys for Raich explicitly invoke Lawrence in suggesting that the government “characterizes [Raich’s] fundamental rights far too narrowly.”