DEA Taken To Court Again For Access To Psilocybin For End-Of-Life Care

The Drug Enforcement Administration (DEA) has refused once more to a petition from a doctor to treat terminally-ill patients with psilocybin therapy, following federal and state “Right to Try” (RTT) laws. The agency is being takento court in a new case.

A preceding litigation took place in the U.S. Ninth Circuit Court of Appeals in February 2022. In light of the court’s case dismissal on procedural grounds, the plaintiffs further pointed at the DEA for a clarification. As the agency did not respond, the case attorneys set a date—until last week—to hold for its reply, after which they would send in another lawsuit.

As first reported by Marijuana Moment, the new case was filed in that same court on July 22. Its grounds are the fact that the federal agency is unlawfully misinterpreting and misapplying the right-to-try regulation which would allow end-stage patients to access drugs that are currently under investigation and still federally illegal.

As plaintiffs stated: “In denying Petitioners’ requested accommodation in the Final Agency Action, DEA hides behind a smokescreen, neglecting its duty to implement the federal RTT and violating the state RTT. It is attempting to use the Controlled Substances Act [CSA] as a cudgel to thwart state medical practice, to the detriment of dying patients.”

The DEA’s previous standpoint involved the notion that it is in no authority to pursue policies advancing the RTT laws. To that, the petitioners replied: “Just because the DEA chooses not to do something, does not mean that the agency has no authority to do so. Here, the DEA is violating federal law and federalism principles.”

“We are engaging litigation, supporting federal congressional action and direct citizen engagement,” explained special counsel and representing lawyer Kathryn Tucker. “Our clients face the reality of inexorably advancing terminal illness and are burdened with debilitating anxiety and depression, which could be relieved with access to this drug.” 

By getting to the merits, disputants hope the court will agree that the current statute orders the DEA to advance psilocybin access to patients without the need for new legislation.

Another attorney working the case, Shane Pennington, told Marijuana Moment that “in treating our petition for a waiver as a request for reconsideration, DEA has effectively confirmed what we’ve been saying all along: The agency’s process is complete and has been for some time. DEA has construed the statutes to divest it of authority to accommodate RTT, and that’s that.”

The full lawsuit text is available here.

Photo Courtesy of qimono on Pixabay.