In a ruling last week, an Argentine federal court threw out the marijuana possession conviction of a Buenos Aires woman who argued that she used the herb for medicinal purposes. The court also ordered the sentencing judge to reconsider the case, taking into account Argentine privacy law, the state of the research on medical marijuana, and the claims that the woman made about how marijuana relieved her symptoms, according to reports in the Buenos Aires daily Pagina 12.
The woman, who was not named in the proceedings, admitted that she used marijuana on occasion to quiet the pains from a spinal cord problem and to fight insomnia because her stomach could not tolerate other analgesics and anti-inflammatory drugs. The trial judge heard these claims, but did not investigate them, and ordered her tried for simple possession of marijuana.
On appeal, the woman's attorney, Gustavo Kollman, argued that the woman's right to health overruled Argentine marijuana laws and presented expert witnesses to back up her claims. Among them was Rodolfo Rothlin, head of the Pharmacology Department of the University of Buenos Aires School of Medicine, who cited US FDA approval of synthetic cannabinoids (Marinol) for AIDS wasting and cancer chemotherapy patients, as well as other conditions, including "chronic pain."
"The state must recognize the right of all individuals to alleviate the effects of their illnesses in the best manner possible," Kollman told the federal court. "Always when they weaken these rights, as is the case with repressing through the penal law the conduct under consideration [the medicinal use of marijuana], the result is mistaken and unconstitutional."
The federal appeals court largely agreed. The facts of the case merited consideration of "a probably disculpatory hypothesis" given the medical testimony, the court found. While the medical evidence may be contradictory, the court held, the primary issue was the right of the individual to seek to protect his or her health. "She cannot be reproached for not having sacrificed her health" to uphold the complex set of interests on which Argentine drug law is based."
"It is necessary to analyze whether the defendant suffered a physical ailment of such magnitude at the time that, given her economic as much as her personal situation, the necessity of overcoming the ailment through the use of the drugs that were seized could be argued in such a manner that that possession could be found to be justified."
Now the case has been returned to the lower court with an order to reopen the investigation into the medical efficacy of marijuana in general and the particular facts of this case. While this does not appear to be headed for the Supreme Court, the federal appeals court has opened the door to a serious reconsideration of the balance between private health needs and the state's interest in enforcing the drug laws.