TALLAHASSEE — Newly minted Gov. Ron DeSantis has indicated he may drop the state’s appeal of a court decision that said a Florida law banning patients from smoking medical marijuana is unconstitutional.
But on the same day the Republican successor to former Gov. Rick Scott was sworn into office, lawyers for the state tried to persuade a three-judge panel to uphold the smoking prohibition.
Tuesday’s arguments at the 1st District Court of Appeal were the latest twist in a challenge to a 2017 law aimed at implementing a constitutional amendment that broadly legalized medical marijuana. More than 71 percent of voters approved the constitutional amendment in 2016.
Architects of the amendment, including Orlando trial lawyer John Morgan, filed the challenge because they said the prohibition on smokable marijuana runs afoul of the Constitution. Leon County Circuit Judge Karen Gievers in May agreed with the plaintiffs and struck down the ban, but her decision has been on hold after the state appealed.
Attorneys representing the Department of Health on Tuesday continued to defend the 2017 law, saying the constitutional amendment gives health officials the power to issue regulations and that the Legislature was right to ban smoking because of its ill effects.
“The amendment does not in any instance guarantee immunity for smoking marijuana,” Deputy Solicitor General Jordan Pratt said.
But appeals-court Judge Timothy Osterhaus questioned the Legislature’s authority to override the requirements of the amendment, which does not specifically authorize smoking.
“Do you think that’s key here, that they didn’t knock out all ways of administering … that they left ways open, or could they have decided that all ways are unsafe?” Osterhaus asked.
Pratt said the law allows for a variety of other methods of consumption and that lawmakers probably would not have been able to ban all types of administering the treatment.
“Is there harm to the voters writ large, if they’ve gone through the process of amending their Constitution, and the Legislature decides, ‘No, we’re not going to go for that and we’re going to veto what you’ve passed?’ ” Osterhaus asked.
The court’s focus “begins and ends with just one question, which is whether the amendment requires smoking of marijuana,” Pratt said.
“And there’s simply nothing in the amendment that says that,” he added.
But Jon Mills, a former dean of the University of Florida law school who helped craft the amendment, told the judges the 2017 law is in direct conflict with the Constitution.
The Constitution allows doctors to order smokable marijuana for eligible patients, but the law does not, Mills said.
“If you could prevent one method, could you prevent all,” Mills said, adding that is “not a small constitutional conflict.”
Whether or not smoking is bad for patients’ health is not an issue, Mills maintained.
“If the constitutional boundaries are set, there are no set of circumstances or facts that justify violating the Florida Constitution,” he said.
Cathy Jordan, a plaintiff in the case, credits a daily regimen of smoking marijuana with keeping her alive decades after doctors predicted she would die from Lou Gehrig’s disease. Jordan, who grows her own pot, testified last year that smoking marijuana treats a variety of life-threatening side effects of the disease and that other forms of ingestion don’t have the same positive impact.
“Cathy Jordan is not trying to have a good time. She’s trying to live. And what works for her is what she and her doctor agreed upon, and that was smoking,” Mills told the judges Tuesday. “There is a conflict. It’s irreconcilable. And that really is the end of the story.”
While Scott’s administration strenuously objected to allowing patients to smoke marijuana, DeSantis appears to have a different view.
DeSantis said he has “not committed” to upholding the ban.
“I think at the end of the day, when the people speak on these things, we want to implement their will. I don’t think that that’s been done fully. So we are going to be taking actions with medical marijuana that are consistent with what I said in the campaign. It was a 72 percent issue, and I have different minds, from different people, about how effective it’s going to be. But at the end of the day those debates are really before the vote happens, and once the vote happens, you’ve got to move on. So we’ll take some actions within a pretty short time,” DeSantis said.