Among those at the center of an unprecedented lawsuit filed against Attorney General Jeff Sessions over federal scheduling of marijuana is Alexis Bortell, eleven, who had to move with her family from Texas to the Colorado community of Larkspur in order to legally use medical cannabis, which has eliminated the epileptic seizures she regularly suffered. She represents a group of patients that her lawyer, Michael Hiller, describes as "medical marijuana refugees."
Alexis is "a remarkable child," Hiller says. "When I first spoke to her, it wasn't to say, 'Hi. How are you?' It was so she could interview me to make sure I was the right lawyer for her. She's a smart kid and a brave kid who's not afraid to tell you what she thinks."
Indeed, Alexis is a published author, co-writing with parents Dean and Liza Bortell and sister Avery a book titled Let's Talk About Medical Cannabis earlier this year. But the suit uses her story in a way that goes beyond conversation. The Controlled Substances Act currently classifies marijuana as a Schedule I narcotic, meaning that, like heroin, it is said to have no accepted medical use — a conclusion rejected by 29 states and the District of Columbia. In the document, accessible below, Hiller and fellow attorneys David Holland, Joseph Bondy and Lauren Rudick argue that this designation is so baseless and problematic that it's actually unconstitutional.
Sessions is the target of the suit because he heads the U.S. Justice Department — and if he's fired by President Donald Trump as punishment for recusing himself in the ongoing investigation of alleged collusion with Russia during the 2016 election, as has been rumored for weeks, the next attorney general will replace him in the document's cross-hairs.
The plaintiffs in the suit include former NFL football player turned entrepreneur Marvin Washington, who can't employ the federal Minority Business Enterprise program because of the Schedule I ranking; Sebastian Cotte, father of Jagger Cotte, a six-year-old with Leigh's Disease; Jose Belen, a disabled combat veteran precluded from using federal medical benefits to obtain marijuana to treat his post-traumatic stress disorder; and the Cannabis Cultural Association, which represents many people of color who believe the government's pot policies are rooted in racism.
Alexis Bortell in 2014, when seizures were a regular part of her life.
As for Dean Bortell, acting on behalf of Alexis, his status as a former member of the Navy who's classified as 100 percent disabled is key. Under ordinary circumstances, the child of a foreign-wars veteran like him would be entitled to receive health coverage, including "the right to use the commissary on any nearby military base," the suit points out. But because medical pot is federally illegal, Alexis couldn't get the only treatment that's worked for her intractable epilepsy at a military facility — or anywhere else in her home state, for that matter.
"Without her use of whole-plant medical cannabis, Alexis would likely have no quality of life," the complaint maintains, "and instead be resigned to spending her days at home inside or worse, in a hospital bed, as medical care-givers surround her with offers of palliative care which fail to provide any actual palliative relief. In addition, Alexis would be subjected to traditional forms of treatment which, aside from being ineffectual, threaten her with serious and life-altering side effects, including infertility."
Moving to Colorado means Alexis can now get the medicine she needs, and she's thriving as a result. Nonetheless, the suit states that she "would like to move back to Texas, where she would be eligible for free college tuition through Texas's State Department of Education. Alexis is not eligible for free state education in Colorado." Additionally, "Alexis would like to travel to other states, but cannot safely do so without fear that (i) her parents, with whom she would travel, might be prosecuted for possession of cannabis; or worse (ii) her parents might be subjected to proceedings which would imperil their parental rights."
Hence the term "medical marijuana refugees," which Hiller describes as "a group of people in places like Colorado who have moved from other states that either are non-state-legal-medical-cannabis jurisdictions or state-legal-medical-cannabis jurisdictions that have restrictions," like limiting approved substances to CBD- or low-THC-content only, for example.
Many of these refugees are in contact with each other, forming a de facto support group. According to Hiller, "Alexis is both unique and typical" of others in her situation. "She's typical in the sense that she suffers from a medical condition that is treatable through the use of medical cannabis. But what's atypical about her is her courage, her outspokenness and her bravery. She's the bravest eleven-year-old I've ever spoken with. She's quite obviously received guidance from her parents, but ultimately, the person who decided to move forward with this case was Alexis. She is not a passive participant at all. She's an advocate. She's a lion. She's terrific."
Alexis Bortell in July.
She's also coming forward at a time when other efforts to reschedule marijuana have failed — a big reason that Hiller and company have chosen to use the legal process.
"According to a Quinnipiac poll from April, 94 percent of Americans support medical cannabis if doctors recommend it, and 60 percent of Americans support the descheduling and decriminalization of cannabis," Hiller points out. "In my experience, there aren't too many issues about which 94 percent of Americans agree. And yet despite the 94 percent support of medical cannabis, and even though over 60 percent of Americans live in state-legal medical cannabis jurisdictions, Congress has not passed any legislation to deschedule cannabis for medical purposes."
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To him, "that means our democratic institutions have broken down. And under circumstances in which a significant civil-rights issue is at stake and our democratic institutions lack the capacity to respond through appropriate legislation, the best recourse is through our judicial system to restore the civil rights to which the American people are entitled."
Hiller adds that "no case has ever been brought like this one. None of the claims that comprise our case have been brought before except for part of our commerce clause claim," which asks the courts to overrule a Supreme Court case called Gonzales v. Raich. "All of the other claims we've brought are new, and we're relying on evidence that the courts have never seen before — and we have marshaled the facts in a way that no litigant involved in a cannabis case has brought before."
Thanks in large part to Alexis Bortell. Click to read Marvin Washington et al. v. Jeff Sessions et al.