Lawyers for Garden City resident Shona Banda have prepared a lawsuit against Gov. Sam Brownback and the state agency that has custody of her child, claiming she has a constitutional right to use cannabis to treat her Crohn’s disease.
Banda self-published a book and posted videos online in which she says cannabis is the only treatment able to calm her condition. The national medical marijuana movement has rallied around her since March, when Garden City police came to her home and confiscated her cannabis after her 11-year-old son spoke up about her use of it at a school anti-drug presentation.
The Kansas Department for Children and Families subsequently took custody of Banda’s son, saying the home environment was not safe for him, and the Finney County attorney filed drug-related criminal charges against her.
A draft of the lawsuit to be filed in federal court was posted online Monday. It asks for the state to return custody of Banda’s son to her. It also names the Garden City Police Department as a defendant, claiming the search of her home was not constitutional.
But what’s likely to attract the most attention from medical marijuana advocates is the suit’s claim that the U.S. Constitution’s 14th Amendment gives her the “fundamental right” to self-medicate with cannabis.
“Plaintiff has a liberty interest specially protected by the Due Process Clause of the Fourteenth Amendment that embraces the right to make a life-shaping decision to use medical marijuana to preserve bodily integrity, avoid intolerable pain, alleviate symptoms and ameliorate the extreme and debilitating symptoms of Crohn’s disease,” the suit states.
To back up that claim, Banda’s attorneys cite the 32 states that have legalized medical marijuana in some form, a 2015 budget bill passed by Congress that instructed the U.S. Department of Justice not to spend money enforcing federal marijuana laws that conflict with state laws, and several research studies that support claims of cannabis’ medical benefits.
Marijuana remains an illegal drug at the federal level and under Kansas state law, which calls for felony charges for a second conviction of possession of any amount of marijuana.
Research on the medical benefits of marijuana was scarce until California became the first state to legalize it for medicinal use in 1996. Studies have remained limited because the U.S. Drug Enforcement Agency still classifies marijuana as a Schedule I controlled substance, which carries the highest level of prohibition.
Initial research has shown some promise for treating conditions like Crohn’s disease and pediatric seizure disorders, and some drugs that contain cannabis developed by traditional pharmaceutical companies have gained FDA approval.
Doug Bonney, an attorney with the American Civil Liberties Union of Kansas, said there’s little case law that supports a constitutional right to medical cannabis.
“Their theories really stretch existing precedent on a person’s right to control their own health care,” Bonney said after reading the draft of the lawsuit.
Banda is represented by Lawrence criminal defense attorney Sarah Swain and California lawyer Matthew Pappas, who specializes in civil rights and disability law. Neither was available for comment on the suit.
“Their theories really stretch existing precedent on a person’s right to control their own health care.”
“Their theories really stretch existing precedent on a person’s right to control their own health care.”- Doug Bonney, an attorney with the American Civil Liberties Union of Kansas
Kansas legislators have shown little appetite for changing state marijuana law, even as neighboring Colorado has gone beyond medicinal use to allow marijuana’s recreational use.
In the 2015 session, the Kansas Legislature declined to approve bills decreasing the penalties for possession, allowing broad use of marijuana for medical reasons and permitting much narrower use of non-intoxicating “hemp oil” for childhood seizure disorders.
The governor’s office declined to comment on Brownback being named a defendant in Banda’s suit.
Theresa Freed, a DCF spokeswoman, said she would not comment on the suit itself but said the agency’s mission is to “protect children, promote healthy families and encourage personal responsibility.”
“Our social workers are trained to assess the safety of a home and make an appropriate recommendation to the court,” Freed said. “Marijuana is an illegal substance in the state of Kansas. It can have both direct and indirect detrimental consequences on families.”