I:\28531 Ind Law Rev 46-2\46masthead.wpd


WOULD GOVERNMENT PROHIBITION OF
MARIJUANA PASS STRICT SCRUTINY?*

TIM WEBER**

INTRODUCTION
The federal government currently classifies marijuana as a Schedule I

controlled substance under the Controlled Substances Act of 1970.1  Essentially,
marijuana production, possession, sale, and use are illegal.2  In addition, any
other plant similar to marijuana, including industrial hemp, is illegal.3  However,
an argument was made for the existence of a fundamental right of bodily
autonomy in an article by Martin D. Carcieri.4  This article also suggested that 
marijuana use may fall under this right of bodily autonomy, but the article did not
delve into the issue, instead suggesting the issues involved be the topic of another
law review article.5  If bodily autonomy is a fundamental right, and marijuana use
falls under that fundamental right, any law prohibiting marijuana use would have
to pass strict scrutiny.6  

This Note asks and answers three questions.  Part I asks, “Is a
constitutionally protected fundamental right of bodily autonomy compatible with
Supreme Court precedent and the Constitution such that the Court should
recognize said right?”  In answering this question, a light review of the strict
scrutiny standard and currently recognized fundamental rights is undertaken to
provide a framework for a discussion of federal and state precedent regarding the
issue.  Part II asks, “If there was to be a fundamental right to bodily autonomy,
should marijuana use fall within this right?”  In determining whether the bodily
autonomy right should extend to marijuana use, the histories of tobacco, alcohol,
and marijuana are examined to put in perspective a subsequent comparison of the
three.  Part III asks, “If there is a fundamental right to bodily autonomy and
marijuana use falls under the right, would the current federal government
prohibition of marijuana pass strict scrutiny for its infringement on bodily
autonomy?”  Here, the proposed compelling interests of morality, crime, and
protecting health—as these relate to marijuana—are debunked, and the broad

* This Note expresses an academic argument only.  It does not represent the views of any
employer or other institution of which the author is a part.

** J.D. Candidate, 2013, Indiana University Robert H. McKinney School of Law;  B.S.,
2009, University of Evansville.

1. 21 U.S.C. §§ 801-971 (2006 & Supp. V 2011).
2. Id. § 41(a)
3. Id. § 841(b)(1)(A)(vii)
4. Martin D. Carcieri, Obama, the Fourteenth Amendment, and the Drug War, 44 AKRON

L. REV. 303, 307-308, 311-12 (2011).
5. Id. at 329.
6. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (applying strict

scrutiny to punitive sterilization); United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938)
(creating a higher level of judicial scrutiny for legislation that met certain conditions).



530 INDIANA LAW REVIEW [Vol. 46:529

nature of the prohibition is demonstrated by citing the negative effects the federal
government prohibition has had on U.S. industrial hemp production and medical
marijuana research and use.  In the end, this Note deems that the Supreme Court
should take the following actions: (1) recognize a fundamental right to bodily
autonomy; (2) include marijuana use in this right; and (3) strike down the current
federal prohibition of marijuana for failing to meet strict scrutiny.

I.  THE FOURTEENTH AMENDMENT, STRICT SCRUTINY,
AND FUNDAMENTAL RIGHTS

We tend to take for granted our ability to decide what to do with our bodies. 
It is our naturally occurring assumption that we decide what to eat and drink,
what clothes and hairstyle to wear, and what medicines and medical procedures
we will endure.  The public balks at the very idea of the government mandating
anything with regard to these issues,7 acquiescing to regulation only when the
public interest is in line with such a mandate.8  This is as it should be.  No man
or woman of sound mind should be controlled in such a way, and to do so would
be a crime on the government’s part that would not be long tolerated by the
citizens.

In fact, the idea that we each decide what happens to our own bodies has a
long history in the United States, with language dating back to at least 1891
suggesting such a right exists.9  However, there is currently no “bodily
autonomy” right recognized by the U.S. Constitution, either in the Bill of Rights
or in terms of those rights the Court has recognized as fundamental under the
Fourteenth Amendment.10  Therefore, the question to answer is whether there
exists any case law that supports the recognition of such a right.  However, a
brief discussion of the Fourteenth Amendment, the different levels of scrutiny,
and the recognized and proposed fundamental rights are first necessary to lay the
groundwork for understanding the issue itself.  

When the Fourteenth Amendment recognizes a right as fundamental, laws
burdening that right will be treated differently from laws burdening rights that
have not been deemed fundamental.11  The Fourteenth Amendment to the United
States Constitution states, “No State shall . . . deprive any person of life, liberty,

7. See Health Opinions: Should the Government Have a Say in Our Diets?, DEBATE.ORG,
http://debates.juggle.com/should-the-government-have-a-say-in-our-diets (last visited Mar. 20,
2013).

8. See generally U.S. CONST. amend. XVIII, repealed by U.S. CONST. amend. XXI, § 1.
(instituting a prohibition on alcohol in the United States, which was later repealed when the
prohibition lost popularity).

9. See Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more
sacred, or is more carefully guarded by the common law, than the right of every individual to the
possession and control of his own person, free from all restraint or interference of others, unless by
clear and unquestionable authority of law.”).

10. See U.S. CONST. amends. I-X; Carcieri, supra note 4, at 311-15. 
11. See GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 768-69 (5th ed. 2005).



2013] MARIJUANA AND STRICT SCRUTINY 531

or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”12  Under either a due process or
equal protection claim, a court usually starts with the presumption that the
government statute, rule, or regulation burdening a right is valid and
constitutional.13  Generally, for the courts to uphold the government action, the
government is only required to demonstrate a “legitimate state interest” in
enacting the statute, rule, or regulation, and a rational relationship between the
statute, rule, or regulation and the interest to be furthered.14

However, courts can subject a law to heightened scrutiny if it either burdens
a fundamental right or a suspect classification.15  In these cases, courts do not
defer to the government.16  This is called strict scrutiny.17  Under strict scrutiny,
the government interest in enacting the law must be compelling, and the law must
be narrowly tailored to meet the interest.18  In terms of suspect class, only the
class of race gets strict scrutiny.19  

In terms of due process and equal protection, however, the list of
fundamental rights has grown over time, and includes, at least arguably,
privacy,20 voting,21 travel,22 and access to the judicial system.23

The most known fundamental right likely is the right to privacy.  In Griswold
v. Connecticut,24 the Supreme Court, through an opinion by Justice Douglas,
indicated that a Connecticut law forbidding use of contraceptives
unconstitutionally intruded upon the right of marital privacy.25  In finding a
constitutional right to privacy, the Court pointed to the “penumbras” of the
Constitution, and inferred that the First, Third, Fourth, Fifth, and Ninth
Amendments collectively create a right to privacy.26  This indicates the Court’s

12. U.S. CONST. amend. XIV, § 1.
13. See Schweiker v. Wilson, 450 U.S. 221, 239 (1981); U.S. Ry. Ret. Bd. v. Fritz, 449 U.S.

166, 174-175 (1980); Vance v. Bradley, 440 U.S. 93, 97 (1979); City of New Orleans v. Dukes,
427 U.S. 297, 303 (1976).

14. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
15. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
16. Id.
17. See STONE ET AL., supra note 11, at 531.
18. See Roe v. Wade, 410 U.S. 113, 155 (1973); Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535, 541 (1942).
19. See STONE ET AL., supra note 11, at 523, 533-45, 576-81.
20. See Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
21. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966).
22. See Shapiro v. Thompson, 394 U.S. 618, 641 (1969), overruled in part by Edelman v.

Jordan, 415 U.S. 651 (1974) (applying strict scrutiny to Connecticut law denying an application
for Aid to Families with Dependent Children assistance because appellee had not lived in
Connecticut for one year based on the idea that the law restricts interstate travel).

23. Boddie v. Connecticut, 401 U.S. 371, 382 (1971).
24. 381 U.S. at 479.
25. Id. at 486.
26. Id. at 484.



532 INDIANA LAW REVIEW [Vol. 46:529

willingness to find that some rights are fundamental despite not being explicitly
mentioned in the Constitution or its subsequent amendments.

Although privacy might be the right that comes to mind when fundamental
rights are brought up, the ability of U.S. citizens to vote in elections is also an
important aspect of our system of ordered liberty.  In Harper v. Virginia State
Board of Elections,27 the Supreme Court held that Virginia’s poll tax was
unconstitutional because it was “inconsistent with the Equal Protection Clause.”28 
In issuing its holding, the Court stated the following:

We have long been mindful that where fundamental rights and liberties
are asserted under the Equal Protection Clause, classifications which
might invade or restrain them must be closely scrutinized and carefully
confined.  Those principles apply here.  For to repeat, wealth or fee
paying has, in our view, no relation to voting qualifications; the right to
vote is too precious, too fundamental to be so burdened or conditioned.29

The Court’s use of strong, emphatic language in this holding illustrates the
importance our legal system gives to fundamental rights.

Another right of U.S. citizens the Court has determined to be fundamental is
the ability of each citizen to travel, at least between states.  In Shapiro v.
Thompson,30 the Supreme Court held that a statutory prohibition against
providing welfare benefits to those who had been residents of the state for less
than one year created a discriminatory classification in violation of equal
protection laws.31

The final right, access to the judicial system, is more tenuous than those
previously listed because, as the Court indicated in Boddie v. Connecticut,32 

We do not decide that access for all individuals to the courts is a right
that is, in all circumstances, guaranteed by the Due Process Clause of the
Fourteenth Amendment so that its exercise may not be placed beyond the
reach of any individual, for, as we have already noted, in the case before
us this right is the exclusive precondition to the adjustment of a
fundamental human relationship. The requirement that these appellants
resort to the judicial process is entirely a state-created matter.33

However, the Supreme Court did hold that in view of the importance of the
marriage relationship in society and the state monopolization of divorce, due
process of law prohibits a state from denying access to its courts to individuals
who seek judicial dissolution of their marriages in good faith solely because of

27. 383 U.S. 663 (1966).
28. Id. at 665-66.
29. Id. at 670 (internal citations omitted).
30. 394 U.S. 618 (1966), overruled in part by Edelman v. Jordan, 415 U.S. 657 (1974).
31. Id. at 641.
32. 401 U.S. 371 (1971).
33. Id. at 382-83.



2013] MARIJUANA AND STRICT SCRUTINY 533

an inability to pay fees.34
Although these four cases represent the only fundamental rights somewhat

recognized by the Supreme Court, at least two other rights have been proposed. 
Past litigants have suggested fundamental rights to education and government
assistance programs, but the Supreme Court has rejected these arguments.  In San
Antonio Independent School District v. Rodriguez,35 the Supreme Court held that
it was improper to apply strict scrutiny to a challenge brought by several parents
of poor school children concerning the reliance on local property taxation by the
Texas school-financing system.36  The Court discussed education as a
fundamental right and, after indicating its support for public education,37
concluded that education was not a fundamental right.38  In Dandridge v.
Williams,39 the Court indicated that it would not apply strict scrutiny to denial of
government assistance programs by holding that a Maryland regulation capping
welfare benefits did not violate the Equal Protection Clause.40

The Supreme Court has not recognized any new fundamental rights since the
tentative endorsement represented by Boddie in 1971.41  This is evidence of a
trend in the federal system to reel in the list of fundamental rights granted under
the Fourteenth Amendment.  However, it is not accurate to say the Supreme
Court would be unwilling to recognize a right should a legitimate one, such as
bodily autonomy, be brought to bear.  Essentially, Supreme Court dicta supports
bodily autonomy’s position as a fundamental right, as evidenced by cases in the
following section.

A.  Supreme Court Precedent Supporting a Bodily Autonomy
Fundamental Right

Although Supreme Court jurisprudence currently does not recognized bodily
autonomy as a fundamental right, the existing fundamental rights arguably have
bodily autonomy aspects.  Furthermore, a significant amount of case law suggests
that U.S. citizens should have a right to bodily autonomy.42

34. Id. at 374, 383.
35. 411 U.S. 1 (1973).
36. Id. at 37.
37. Id. at 29-30.
38. Id. at 37.
39. 397 U.S. 471 (1970).
40. Id. at 472-73, 485.
41. See Boddie v. Connecticut, 401 U.S. 371, 382 (1971); see also STONE ET AL., supra note

11, at 768-844 (discussing fundamental rights).
42. See, e.g., Lawrence v. Texas, 539 U.S. 558, 564, 574, 578-79 (2003); Planned Parenthood

of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992); Cruzan ex rel. Cruzan v. Mo. Dep’t of Health, 497
U.S. 261, 269 (1990); Winston v. Lee, 470 U.S. 753, 759 (1985); Roe v. Wade, 410 U.S. 113, 154
(1973); Boddie, 401 U.S. at 382; Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Rochin v.
California, 342 U.S. 165, 172 (1952); Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 254-55
(1891).



534 INDIANA LAW REVIEW [Vol. 46:529

In 1891, the Supreme Court, in Union Pacific Railway Co. v. Botsford,43
determined if the trial court could force an individual against her consent to
undergo a medical examination for the purpose of ascertaining the extent of her
injuries.44  The Court held, “The order moved for, subjecting the plaintiff’s
person to examination by a surgeon, without her consent and in advance of the
trial, was not according to the common law, to common usage, or to the statutes
of the United States.”45  The Court, in reaching this holding, indicated that “[n]o
right is held more sacred, or is more carefully guarded by the common law, than
the right of every individual to the possession and control of his own person, free
from all restraint or interference of others, unless by clear and unquestionable
authority of law.”46  This language strongly supports the position that bodily
autonomy is a fundamental right.

In Rochin v. California,47 a man swallowed two capsules that the police
reasonably believed to be contraband.48  The police pumped the man’s stomach
in order to retrieve the contraband.49  The Supreme Court held that the forced
stomach pumping violated the liberty protected by the Due Process Clause of the
Fourteenth Amendment.50  This ruling illustrates the Court’s willingness to
protect an individual’s right to control his or her own body and creates significant
support for the protection of bodily autonomy under the Fourteenth Amendment.

Although Griswold v. Connecticut51 is primarily known for its role in the
creation of a fundamental right to privacy,52 privacy, itself, arguably is only an
aspect of bodily autonomy.53  In fact, the right to privacy and proposed right to
bodily autonomy mirror each other significantly in terms of their essential
argument for existence.54  Joel Feinberg, a philosophy professor at the University
of Arizona, described the interrelationship between privacy and personal or
“bodily” autonomy as follows:

After all, we speak of “bodily autonomy,” and acknowledge its violation
in cases of assault, battery, rape, and so on.  But surely our total
autonomy includes more than simply our bodily “territory,” and even in
respect to it, more is involved than simple immunity to uninvited

43. 141 U.S. at 250.
44. Id. at 251.
45. Id. at 257. 
46. Id. at 251.
47. 342 U.S. at 165.
48. Id. at 166.
49. Id.
50. Id. at 172-74.
51. 381 U.S. 479 (1965).
52. Id. at 486.
53. See 3 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO SELF 52-54

(1986).
54. Id. at 53 (talking about each individual as the sovereign of themselves whose “personal

domain consists of the body, privacy, landed and chattel property, and at least vital life-decisions”).



2013] MARIJUANA AND STRICT SCRUTINY 535

contacts and invasions.  Not only is my bodily autonomy violated by a
surgical operation (“invasion”) imposed on me against my will; it is also
violated in some circumstances by the withholding of the physical
treatment I request (when due allowance has been made for the personal
autonomy of the parties of whom the request is made).  For to say that
I am sovereign over my bodily territory is to say that I, and I alone,
decide (so long as I am capable of deciding) what goes on there.  My
authority is a discretionary competence, an authority to choose and make
decisions.55

Furthermore, in Griswold, the Court recognized the existence of
“penumbras” of the Constitution that can create additional rights not found
explicitly in the text of the document.56  Given this, the Court extrapolated that
the right to privacy exists, at least within a marriage.57  Of particular interest for
a discussion of bodily autonomy is the Court’s use of the Ninth Amendment,
which provides, “The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.”58  This
amendment’s passage by the founders and use by the Court in Griswold to justify
“creating” a right not previously found in the Constitution indicates that the
rights enumerated by the Constitution are not all-inclusive.  Therefore, the
recognition of a bodily autonomy right by the Court would have a sound
constitutional backing despite the fact it is not explicitly stated anywhere in the
Constitution. 

In Lawrence, the Supreme Court held a Texas law criminalizing sodomy,
even between consenting adults, was a violation of the Fourteenth Amendment.59 
Although this case, like Griswold, is often cited in relation to privacy issues, it
is also illustrative of at least the perceived trend of courts recognizing individual
rights, a trend that could lead to the recognition of a bodily autonomy right.

In Cruzan ex rel. Cruzan, the Supreme Court inferred from its prior rulings
that the Fourteenth Amendment gives a patient the right to refuse or discontinue
life preserving procedures.60  The Court cited Botsford in discussing the
sacredness of an individual’s right to control his body.61  The Court’s citation of
Botsford is telling because it indicates that the Cruzan Court was persuaded to
rule as it did due to, in part, bodily autonomy arguments.

The Court has expressly recognized the existence of a bodily or physical
autonomy right through dicta in several cases.  For example, in Winston v. Lee,62
the Supreme Court held Lee’s interest in avoiding the surgery to remove a bullet

55. Id.
56. Griswold, 381 U.S. at 484.
57. Id. at 486.
58. U.S. CONST. amend. IX.
59. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).
60. Cruzan ex rel. Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990).
61. Id. at 269; see also Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).
62. 470 U.S. 753 (1985).



536 INDIANA LAW REVIEW [Vol. 46:529

from under his collarbone pursuant to a police request outweighed the state
interest in violating his bodily autonomy.63  Additionally, in Roe v. Wade,64 the
Court held women may obtain abortions despite the state’s interest in preserving
fetal human life.65  The Roe Court cited Botsford in its discussion,66 stated
abortion is covered by the right to privacy,67 and weighed the woman’s right to
privacy against the state’s interest in protecting prenatal life.68  The Court
continued this discussion in Casey when it recognized that the two general rights
under which the right of the mother in Roe was justified were the right to make
family decisions and the right to physical autonomy.69  These three cases taken
together illustrate the fact that the Court has recognized a bodily or physical
autonomy right in the dicta of its previous opinions.

B.  Court Precedent from the States
Although there is ample United States Supreme Court precedent to

demonstrate that a fundamental right to bodily autonomy should be recognized,
there have also been a number of states that explicitly recognize or suggest that
bodily or physical autonomy is a fundamental right.  

The Alaska Supreme Court has expressed support in dicta for a “personal
physical autonomy” category.  In Huffman v. State,70 the court held, in part, “the
right to make decisions about medical treatments for oneself or one’s children is
a fundamental liberty and privacy right in Alaska.”71  In so holding, the Huffman
court indicated that controlling one’s own medical treatment falls into the same
category of “personal physical autonomy” as having control over one’s own
hairstyle and reproductive choices, which the Alaska Supreme Court had already
determined that the Alaska Constitution protects as fundamental rights.72  The
Alaska Supreme Court’s characterization of “personal physical autonomy” as a
category that would include activities protected under privacy, such as
controlling one’s own medical treatment, hairstyle, and reproductive choices, is
indicative of the importance and weight that court gives to physical autonomy.

The Montana Supreme Court has expressed a stance similar to that of
Alaska’s Supreme Court, although the Montana court used slightly different
language.73  In Armstrong v. State,74 the Montana Supreme Court indicated that

63. Id. at 756, 764, 766-67.
64. 410 U.S. 113 (1973).
65. Id. at 162-63, 167.
66. Id. at 152; Botsford, 141 U.S. at 251.
67. Roe, 410 U.S. at 154.
68. Id. at 150.
69. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 835 (1992).
70. 204 P.3d 339 (Alaska 2009).
71. Id. at 346.
72. Id. (citing Breese v. Smith, 501 P.2d 159, 169–70 (Alaska 1972); Valley Hosp. Ass’n v.

Mat–Su Coal. for Choice, 948 P.2d 963, 969 (Alaska 1997)).
73. Id. at 384 (recognizing Montana’s Constitution’s inclusion of a textual right to privacy,



2013] MARIJUANA AND STRICT SCRUTINY 537

legislation requiring pre-viability abortions be carried out by physicians infringes
on “the fundamental right of individual privacy guaranteed to every person under
Article II, Section 10 of the Montana Constitution.”75  Furthermore, that court
held that the personal autonomy component of individual privacy “broadly
guarantees each individual the right to make medical judgments affecting her or
his bodily integrity and health in partnership with a chosen health care provider
free from the interference of the government, except in very limited
circumstances not at issue here.”76  The Montana Supreme Court’s endorsement
of personal autonomy as a component of the fundamental privacy right in
Armstrong supports the creation of a stand-alone physical or bodily autonomy
right because the court here has already recognized physical autonomy as an
issue that should be given the highest level of scrutiny due to its relation to
privacy. 

Alaska and Montana are not the only states whose judiciaries have discussed
an autonomy right.  In State v. Presidential Women’s Center,77 the Florida
Supreme Court stated, “The doctrine of medical informed consent is rooted in the
concepts of bodily autonomy and integrity.”78  In State v. Miller,79 the Hawaii
Supreme Court indicated that “[f]reedom from unjustified governmental
intrusions into . . . bodily autonomy [is] at the core of the liberty protected by due
process.”80  In In re R.K., the Illinois Court of Appeals found the state had failed
to present adequate evidence to allow the involuntary administration of
medication to the respondent after the respondent asserted, “[T]he State failed to
prove that the benefits of the psychotropic medication to respondent outweighed
the side effects of the medication and the loss of her ‘bodily autonomy.’”81

In 1914, Schloendorff v. Society of New York Hospital,82 New York’s highest
court stated, “Every human being of adult years and sound mind has a right to
determine what shall be done with his own body.”83  This language from a case
dating back to the last century embodies the history in the United States of
recognizing an individual’s right to determine what happens to his or her own

causing the discussion, and decision, to rest mostly on privacy grounds, although the decision also
included Feinburg’s discussion of the similarities between privacy and autonomy outlined in supra
note 55 and accompanying text).  

74. 989 P.2d 364 (Mont. 1999).
75. Id.
76. Id.
77. 937 So. 2d 114 (Fla. 2006).
78. Id. at 119.
79. 933 P.2d 606 (Haw. 1997).
80. Id. at 610 (citing Foucha v. Louisiana, 507 U.S. 71, 80 (1992)).
81. In re R.K, 786 N.E.2d 212, 217 (Ill. App. Ct. 2003) (ruling in this manner after the

Respondent made a bodily autonomy right, but the actual basis of the decision was the Mental
Code, making it so that involuntary administration of a medication is not something that is to be
done lightly, thus supporting the existence of a bodily autonomy right).

82. 105 N.E.2d 92 (N.Y. 1914), abrogated by Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957).
83. Id. at 93.



538 INDIANA LAW REVIEW [Vol. 46:529

body in line with the holding in Botsford.
In Herman v. State, the Indiana Supreme Court, in 1855, found that a law that

absolutely forbade the manufacture and sale of whisky, ale, porter, and beer, for
use as a beverage was unconstitutional.84  The suit was brought on habeas corpus
grounds,85 and in holding the law invalid, the court stated,

[F]or under our system of government, founded in a confidence in man’s
capacity to direct his own conduct, designed to allow to each individual
the largest liberty consistent with the welfare of the whole, and to
subject the private affairs of the citizen to the least possible
governmental interference, some excesses will occur, and must be
tolerated, subject only to such punishment as may be inflicted.86

This holding and the logic behind it suggests the existence of a broad personal
autonomy right that covers the use of alcohol as a beverage, and that this right is
one of the fundamental principles that the U.S. was founded upon.

Although these cases provide a glimpse into where some states currently
stand with regard to bodily autonomy, the Washington case of Seeley v. State87
provides the greatest insight into this issue for the purposes of this Note.  In
Seeley, a terminally ill cancer patient who wanted to smoke marijuana to control
the side effects of chemotherapy filed suit seeking declaratory judgment that it
was a violation of the Washington Constitution that, per the Uniform Controlled
Substance Act, marijuana was classified as a Schedule I controlled substance.88 
In discussion of the issues presented, Justice Sanders in dissent stated, 

Roe and Casey clarify that the more personal the individual interest, the
more that interest concerns bodily autonomy, the more that interest
centers on purely personal concerns such as the avoidance of pain
through a medical procedure, the less likely the governmental restraint
will be upheld.  The rationale behind Glucksberg is much the same.  An
absolute criminal bar to the use of marijuana includes specifically
personal concerns of bodily autonomy coupled with the personal desire
to mitigate if not alleviate needless physical suffering.  These are grave
interests which favor the individual.89

The Washington Supreme Court went on to hold the following: (1) “[t]he
privileges and immunity clause of the Washington Constitution does not provide
greater protection than the Fourteenth Amendment of the Federal Constitution
in the area of drug classification”; (2) the challenged statute was “appropriately
analyzed under a rational basis test”; (3) the plaintiff failed to show that the
legislature’s decision regarding its classification of marijuana was “arbitrary or

84. Herman v. State, 8 Ind. 545, 548-49, 558-59, 567 (Ind. 1855).
85. Id. at 545.
86. Id. at 563-64.
87. 940 P.2d 604 (Wash. 1997) (en banc).
88. Id. at 606-07, 613-14; see also WASH. REV. CODE § 69.50.204 (2012).
89. Seeley, 940 P.2d at 627 (Sanders, J., dissenting).



2013] MARIJUANA AND STRICT SCRUTINY 539

obsolete”; and (4) “frequent recurrence to [the] fundamental principles clause [of
the Washington Constitution] does not create a right to use marijuana for medical
treatment free from the lawful exercise of government police power.”90  Although
this holding was a blow to the medical marijuana movement, the court’s
discussion of bodily autonomy is helpful to illustrate the states’ current
understanding of Supreme Court precedent as well as the growing trend in state
and federal court to recognize bodily autonomy as a right guaranteed by law in
the United States.

C.  Part I Conclusion A Bodily Autonomy Right
These cases indicate the willingness and trend of the judiciary in recognizing

the right of an individual to control his or her own body.  It is as the court stated
in Abigail Alliance for Better Access to Developmental Drugs v. von
Eschenbach91: “A right of control over one’s body has deep roots in the common
law.”92  The United States Supreme Court has gone so far as to recognize a
bodily autonomy right in dicta,93 and it should now fully recognize bodily
autonomy as a fundamental right.94

II.  MARIJUANA’S PLACE WITHIN A BODILY AUTONOMY RIGHT
The focus of this section is to determine if marijuana use falls in the

proposed bodily autonomy right.  It is important to note at the outset that Part II
is not discussing the test for strict scrutiny.  Instead, Part II seeks to establish that
marijuana should be included in the proposed bodily autonomy fundamental right
by comparing marijuana to alcohol and tobacco.

A.  History
When analyzing issues, courts often look at the history of the issue in terms

of the United States95 and global96 history.  Also, courts analogize the issue
currently being addressed to similar ones that past court decisions have already
resolved.97  Therefore, in determining if marijuana use would fall under the

90. Id. at 622-23 (majority opinion).
91. 445 F.3d 470 (D.C. Cir. 2006).
92. Id. at 480.
93. See, e.g., Winston v. Lee, 470 U.S. 753, 767 (1985); Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833, 835 (1992).
94. See Carcieri, supra note 4, at 311-23.
95. See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (establishing the well-

known legal principle of stare decisis indicates that courts should generally respect the holdings
of prior court cases).

96. See Davidson v. Nichols, 93 Mass. (II Allen) 514, 515 (Mass. 1866) (citing Vaughan v.
Menlove, 132 Eng. Rep. 490 (Ct. Com. Pl. 1837)) (illustrating the idea that U.S. courts sometimes
look outside the U.S. for guidance).

97. See generally Marbury, 5 U.S. (1 Cranch) at 137 (establishing the principle of judicial



540 INDIANA LAW REVIEW [Vol. 46:529

proposed bodily autonomy right, a discussion of the history, both legal and
otherwise, of tobacco, alcohol, and marijuana provides some important insight.

1.  Tobacco.—A review of the history of tobacco use and cultivation in the
United States reveals a crop and pastime closely aligned with the American
tradition and experience.  Tobacco production and use was widespread among
Native Americans before the arrival of Europeans.98  Smoking tobacco played
religious or social purposes for some Native Americans.99  During the 1700s, the
demand for tobacco from Europe and the rest of the world fueled the agrarian
economies of southern U.S. states like Georgia.100

Approximately 1.1 billion people today currently use tobacco—one third of
the adult population.101  The World Health Organization reports tobacco use to
be the leading preventable cause of death worldwide, estimating it currently
causes nearly six million deaths per year.102  This is despite the fact smoking rates
among adults in the United States fell by half from 1965 to 2006, from 42% to
21%.103  The U.S. Congress has never attempted to enact a nationwide tobacco
smoking ban.  In the United States, federal law indicates individuals must be
eighteen to purchase and consume tobacco, but four states have increased the
minimum age to nineteen.104

Tobacco has played an important role in the development of the United
States, both as a major crop for export105 and a vice,106 although its use has
dropped recently, most likely due to the prevalence of anti-tobacco campaigns.107 
Like tobacco, marijuana has played an important role in United States history due
to its status as a cash crop,108 not to mention its medical109 and personal uses. 

review in terms of reviewing legislative action).
98. TOBACCO USE BY NATIVE NORTH AMERICANS 3-8 (Joseph C. Winter ed., 2000).
99. Id.

100. PAUL S. BOYER ET AL., THE ENDURING VISION: A HISTORY OF THE AMERICAN PEOPLE 64
(6th ed. 2009).

101. SMOKE: A GLOBAL HISTORY OF SMOKING 26 (Sander L. Gilman & Zhou Xun eds., 2004).
102. WORLD HEALTH ORG., WHO REPORT ON THE GLOBAL TOBACCO EPIDEMIC, 2011, at 8

(2011), available at whqlibdoc.who.int/publications/2011/9789240687813_eng.pdf.
103. AM. CANCER SOC’Y, CANCER FACTS & FIGURES 2010, at 42 (2010), available at

http://www.cancer.org/acs/groups/content/@nho/documents/document/acspc-024113.pdf.
104. Brock Parker, Raising the Bar for Teens, Tobacco, BOSTON.COM (June 7, 2012),

http://www.boston.com/news/local/massachusetts/articles/2012/06/07/raising_the_barfor_teenst
obacco/ (listing Alabama, Alaska, New Jersey, and Utah as the four states having a higher minimum
age for purchasing tobacco).

105. OAKLEY RAY & CHARLES KSIR, DRUGS, SOCIETY, AND HUMAN BEHAVIOR 266 (8th ed.
1999).

106. Id. at 284-85.
107. BRIAN KING ET AL., CTRS. FOR DISEASE CONTROL & PREVENTION, VITAL SIGNS: CURRENT

CIGARETTE SMOKING AMONG ADULTS AGED $ 18 YEARS—UNITED STATES, 2005-2010, 60
MORBIDITY & MORALITY WKLY. REP. 1207, 1208-09 (2011), available at http://www.cdc.
gov/mmwr/pdf/wk/mm6035.pdf.

108. JEAN M. RAWSON, CONG. RESEARCH SERV., RL32725, HEMP AS AN AGRICULTURAL



2013] MARIJUANA AND STRICT SCRUTINY 541

Alcohol has also served valuable functions in human society.
2.  Alcohol.—A review of the history of alcohol illustrates that alcohol has

also been an important aspect of culture and preservation for the United States,
not to mention for the entirety of the human species.110  The earliest evidence of
alcohol comes from China where wine jars date to about 7000 B.C.111  Alcohol
played a major part in colonial America as drinking beer and wine was often
safer than drinking water.112  People of all ages113 and both sexes drank alcohol
during this time.114

Prohibition was instituted with the Eighteenth Amendment to the United
States Constitution in 1919.115  This amendment prohibited “the manufacture,
sale, or transportation of intoxicating liquors within, the importation thereof into,
or the exportation thereof from the United States.”116  Congress passed the
Volstead Act to enforce Prohibition,117 but most large cities were uninterested in
enforcing the legislation, leaving the job to the federal government.118 Although
alcohol consumption did decline during Prohibition, there was a dramatic rise in
organized crime in the larger cities, whose organized crime syndicates used
alcohol sales as a source of revenue.119  Prohibition became unpopular during the
Great Depression as the repeal movement emphasized that repeal would generate
enormous sums of tax revenue and weaken the base of organized crime.120  The
Twenty-First Amendment to the U.S. Constitution repealed nationwide
prohibition in 1933,121 but prohibition survived for a while in a few southern and
border states.122  

COMMODITY 2 (2005), available at http://www.fas.org/sgp/crs/RL32725.pdf.
109. See JACK HERER, THE EMPEROR WEARS NO CLOTHES 2 (11th ed. 2000) (“[M]arijuana and

hashish extracts were the first, second, or third most-prescribed medicines in the United States from
1842 until the 1890s.”).

110. Bert L. Vallee, Alcohol in the Western World: A History, 278 SCI. AM. 80, 80-85 (June
1998), available at http://www.beekmanwine.com/prevtopx.htm.

111. PATRICK E. MCGOVERN, ANCIENT WINE:  THE SEARCH FOR THE ORIGINS OF VINICULTURE
314 (2003).

112. Vallee, supra note 110, at 80-85.
113. Id.
114. ED CREWS, DRINKING IN COLONIAL AMERICA, COLONIAL WILLIAMSBURG J., available at

http://www.history.org/foundation/journal/holiday07/drink.cfm.
115. U.S. CONST. amend. XVIII, repealed by U.S. CONST. amend. XXI.
116. Id. § 1.
117. Volstead Act of 1919, H.R. 6810, 66th Cong. (1919).
118. Jeffrey A. Miron, Alcohol Prohibition, EH.NET (Feb. 1, 2010, 5:21 PM),

http://eh.net/encyclopedia/article/miron.prohibition.alcohol; see generally THOMAS R. PEGRAM,
BATTLING DEMON RUM: THE STRUGGLE FOR A DRY AMERICA, 1800-1933 (1998) (discussing at
length prohibition era U.S. issues).

119. Miron, supra note 118; see also PEGRAM, supra note 118, at 85-85, 167, 174-75.
120. Miron, supra note 118; see also PEGRAM, supra note 118, at 183-85.
121. U.S. CONST. amend. XXI.
122. Miron, supra note 118; see also PEGRAM, supra note 118, at 186.



542 INDIANA LAW REVIEW [Vol. 46:529

It is currently legal for any individual twenty-one or older to drink alcohol
in the United States, although restrictions exist regarding what one may do while
intoxicated.123  “[E]xcessive alcohol use [is] the [third] leading lifestyle-related
cause of death” for people in the United States.124

It is easy to see an analogy between the prohibition of marijuana and the
Eighteenth Amendment.  Both regulate private conduct, arguably for primarily
moral reasons, and the arguments for the repeal of both are similar: decrease
crime and generate taxes.125  The decrease in revenues seen by organized crime
after Prohibition ended was indeed a devastating blow to these organizations’
abilities to perpetuate criminal activities, a blow that was lessened when these
gangs turned to other illicit drugs, including marijuana, for a revenue stream.126 
Simple economics tells us that where there is a demand, there will arise a supply
for that demand.  

3.  Marijuana.—Marijuana’s first recorded use as an intoxicant was in 2737
B.C.127  It was recorded by the Chinese emperor of the time, Shen Nung.128  The
uses of marijuana, both social and medical, spread throughout Asia, North
Africa, and the Muslim world, eventually reaching Europe, the Caribbean, and
Central and South America.129

In 1619, the Jamestown colony passed a law “making it illegal not to grow
hemp,”130 a genetically distinct variety of Cannabis Sativa L. characterized by its
low level of the psychoactive chemical tetrahrydocannabinol (“THC”).131 
Therefore, it must be noted that the current United States prohibition of
marijuana, which includes hemp, is a complete 180-degree turn from how some
early colonists approached marijuana, at least in terms of cultivation.  In the
United States in the 1800s, marijuana was occasionally prescribed as a medicine
for diverse ailments and only rarely used as an intoxicant.132

The properties of marijuana were not the real reason it was illegalized. 

123. See, e.g., IND. CODE § 9-30-5 (2012) (discussing the offense of “Operating a Vehicle
While Intoxicated”).

124. Alcohol Use and Health, CTRS. FOR DISEASE CONTROL & PREVENTION (last updated Oct.
1, 2012), http://www.cdc.gov/alcohol/fact-sheets/alcohol-use.htm.

125. See HERER, supra note 109, at 39, 59.
126. GLOBAL COMM’N ON DRUG POL’Y, WAR ON DRUGS 4 (June 2011) [hereinafter GCDP

REPORT], available at http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/
Global_Commission_Report_English.pdf.

127. RAY & KSIR, supra note 105, at 404-05.
128. Id. at 404.
129. MARTIN BOOTH, CANNABIS: A HISTORY 77 (2003) (quoting BAYARD TAYLOR, A JOURNEY

TO CENTRAL AFRICA (1854)).
130. Affidavit of David P. West, Ph.D., ¶ 34, United States v. White Plume, 447 F.3d 1067,

1072 (8th Cir. 2006) (No. CIV 02-5071).
131. Affidavit of Burton L. Johnson, Ph. D., ¶ 3, Monson v. Drug Enforcement Admin., 522

F. Supp. 2d 1188 (D.N.D. 2007) (No. 4:07-cv-00042).
132. RICHARD J. BONNIE & CHARLES H. WHITEBREAD II, THE MARIHUANA CONVICTION:  A

HISTORY OF MARIHUANA PROHIBITION IN THE UNITED STATES 117 (1974).



2013] MARIJUANA AND STRICT SCRUTINY 543

Rather, in large part, it was the use of marijuana by Mexican immigrants bringing
cheap labor into the American South and Southwest, and later by African-
Americans, that fueled the hatred of marijuana.133  The government, through the
Federal Bureau of Narcotics (“FBN”), set about vilifying marijuana
systematically in the 1930s.134  This included propaganda movies and fabricated,
falsified, or embellished news articles directed at making marijuana seem
connected to crime, perversion, and mental instability.135

The head of the FBN, Harry J. Anslinger, was intricately involved in this
vilification process.136  He even presented horror stories about marijuana to
Congress at the preliminary congressional hearings of the Marihuana Tax Act in
April 1937.137  The Marihuana Tax Act provided that certain individuals and
entities growing, using, or manufacturing marijuana must pay a tax.138  Failure
to do so would result in stiff fines and lengthy prison sentences.139  Some argue
the Marihuana Tax Act was a ploy on the part of various businessmen in the
timber industry to reduce the production of hemp, which they had concluded was
far better for paper production than wood pulp.140  The American Medical
Association opposed the act because it was imposed on physicians who wished
to prescribe cannabis.141  

After the Marihuana Tax Act passed, propaganda to vilify marijuana
continued despite studies during the time suggesting such claims of villainy were
false.142  An FBN publication in 1965 indicated, “[n]ever let anyone persuade you
to smoke even one marijuana cigarette.  It is pure poison.”143  In 1969, the
Marihuana Tax Act was declared constitutionally invalid because the law
functioned as prohibition in the guise of taxation.144

The 1970s saw a general attempt at legalizing marijuana.145  Several states
decriminalized marijuana in the 1970s after President Nixon’s administrative

133. BOOTH, supra note 129, at 77.
134. Id.
135. Id.
136. Id. at 154.
137. Id.
138. Marihuana Tax Act of 1937, Pub. L. No. 238, 50 Stat. 551 (1937).
139. Id.
140. LAURENCE FRENCH & MAGDALENO MANZANÁREZ, NAFTA & NEOCOLONIALISM: 

COMPARATIVE CRIMINAL, HUMAN & SOCIAL JUSTICE 129 (2004).
141. Taxation of Marihuana: Hearings on H.R. 6385 Before the H. Comm. on Ways and

Means, 75th Cong. 1 (1937) (Statement of Dr. William C. Woodward, Legislative Counsel, Am.
Med. Ass’n), available at http://www.druglibrary.org/Schaffer/hemp/taxact/woodward.htm.

142. LESTER GRINSPOON, MARIHUANA RECONSIDERED 17-20 (1971). 
143. BOOTH, supra note 129, at 224.
144. Leary v. United States, 395 U.S. 6, 54, 115-16 (1969).
145. NAT’L COMM’N ON MARIHUANA & DRUG ABUSE, MARIHUANA: A SIGNAL OF

MISUNDERSTANDING, at ch. 5 (1972), available at http://www.druglibrary.org/schaffer/library/
studies/nc/ncmenu.htm.



544 INDIANA LAW REVIEW [Vol. 46:529

commission on marijuana recommended decriminalization as national policy.146 
However, Nixon himself was convinced drugs and crime went hand-in-hand, and
he established the Drug Enforcement Agency, giving it vast powers to combat the
spread of drugs.147  It was also during the Nixon Administration that the
Comprehensive Drug Abuse Prevention and Control Act of 1970 classified
marijuana, alongside heroin and LSD, as a Schedule I drug, effectively
illegalizing it.148

Marijuana is still classified as a Schedule 1 drug, which, in layman’s terms,
means it is illegal.149  Despite marijuana’s illegal status, a 2009 national survey
conducted by the U.S. Department of Health and Human Services reported that
more than 11% of individuals surveyed admitted to having used marijuana in the
year before they were surveyed.150  This translates to more than 27.7 million U.S.
citizens using marijuana in the last year, or more than one in ten citizens.  The
same survey indicated almost 7% of the U.S. population uses marijuana on a
monthly basis.151

In 2005, U.S. citizens consuming marijuana comprised 12.6% of the
population between the ages of fifteen and sixty-four.152  In 2009, more than half
of individuals aged eighteen to forty-nine indicated they had consumed marijuana
in their lives.153  The total number of individuals who admitted to having used
marijuana in their lifetimes was over 105 million in 2009, or 41.7% of the
population.154  Marijuana is currently “the most commonly used illicit drug” in
the U.S.155

As of the writing of this Note, fourteen states allow the possession of a small
quantity for personal use to be treated as a civil infraction, which means there is
no arrest or criminal record, or less.156  Some states treat second offenses for

146. Id.
147. BOOTH, supra note 129, at 241.
148. Controlled Substances Act of 1970, 21 U.S.C. § 801 (1970).
149. 21 U.S.C. § 812(c)(10) (2006).
150. U.S. DEP’T OF HEALTH & HUMAN SERVS., NATIONAL SURVEY ON DRUG USE AND HEALTH

(2009) [hereinafter DEP’T OF HEALTH SURVEY], available at http://www.icpsr.umich. edu/icpsrweb/
SAMHDA/studies/29621.

151. Id.
152. U.N. OFFICE ON DRUGS & CRIME, 2007 WORLD DRUG REPORT, at 244, U.N. Sales No.

E.07.X1.5 (2007), available at http://www.unodc.org/pdf/research/wdr07/WDR_ 2007.pdf.  
153. DEP’T OF HEALTH SURVEY, supra note 150.
154. Id.
155. Office of Nat’l Drug Control Policy, Marijuana Legalization (Oct. 2010), http://www.

whitehouse.gov/sites/default/files/ondcp/Fact_Sheets/marijuana_legalization_fact_sheet_3-3-
11.pdf.

156. The thirteen states are: (1) Alaska (see ALASKA STAT. § 11.71.010 (2011) (“misconduct
. . . in the first degree”); id. § 11.71.160 (Schedule III(A))); (2) California (see CAL. HEALTH &
SAFETY CODE § 11054(d)(13) (West 2012) (Schedule I); id. § 11357 (“[u]nauthorized
possession”)); (3) Colorado (see COLO. REV. STAT. § 18-18-203(c)(XXIII) (2012) (THC as
Schedule I); id. § 18-18-406 (penalties for possession)); (4) Connecticut (see CONN. GEN. STAT.



2013] MARIJUANA AND STRICT SCRUTINY 545

possession more harshly,157 and the majority of states treat the sale of any
quantity of marijuana as a crime.158  Several states have decriminalized at least
some kind or kinds of marijuana possession.159  On November 6, 2012, voters in
Colorado and Washington legalized recreational marijuana by referendum.160
However, in 2005, the U.S. Supreme Court indicated the federal government has
the final say regarding legality of marijuana due to the Commerce Clause,161 and
the DEA has said its enforcement policy regarding marijuana remains the
same.162

In October 2011, Gallup conducted a poll that found 50% of Americans favor
legalizing marijuana use.163  This was the first instance of hard data supporting
the assertion that half of the public favors legalization,164 and this shift arguably

§ 21a-279 (2012)); (5) Maine (see ME. REV. STAT. tit. 17-A § 1102 (2012) (Schedule Z); id. §
1107-A (“[u]nlawful possession”)); (6) Massachusetts (see MASS. GEN. LAWS ch. 94C, §
32L (2012) (possession of one ounce or less)); (7) Minnesota (see MINN. STAT. § 152.02(h) (2012)
(Schedule I); id. § 152.027 (possession and sale)); (8) Mississippi (see MISS. CODE ANN. § 41-29-
113(c)(14) (2012) (Schedule 1); id. § 41-29-139 (possession for possession, sale, etc.)); (9)
Nebraska (see NEB. REV. STAT. § 28-405(c)(10)-(15) (2012) (Schedule I); id. § 28-416 (penalties));
(10) Nevada (see NEV. REV. STAT. §453.336 (2009) (penalties for possession)); (11) New York (see
N.Y. PUB. HEALTH LAW § 3306(d)(13) (McKinney 2013); N.Y. PENAL LAW § 221.05 (McKinney
2013) (“[u]nlawful possession”)); (12) North Carolina (see N.C. GEN. STAT. § 90-94 (2012)
(Schedule VI); id. § 90-95 (b)(2), (d)(4) (penalties)); (13) Ohio (see OHIO REV. CODE ANN. §
3719.41(C)(19) (West 2013) (Schedule I); id. § 3719.99 (“[p]enalties”)); and (14) Oregon (see OR.
REV. STAT. § 475.864 (20011) (unlawful possession)).

157. E.g., Colorado (see COLO. REV. STAT. § 18-18-203(c)(XXIII) (2012) (THC as Schedule
I); id. § 18-18-406 (penalties for possession)).

158. E,g., Connecticut (see CONN. GEN. STAT. § 21a-279 (2012)), and California (see CAL.
HEALTH & SAFETY CODE § 11054(d)(13) (West 2013); id. § 11357 (“[u]nauthorized possession”)).

159. E.g., Connecticut (see CONN. GEN. STAT. § 21a-279 (2012)), and Colorado (see COLO.
REV. STAT. § 18-18-203(c)(XXIII) (2012) (THC as Schedule I)).

160. Gov. Hickenlooper Signs Amendment 64 Proclamation, Creates Task Force to
Recommend Needed Legislative Actions, COLO. (Dec. 10, 2012), http://www.colorado.gov/cs/
Satellite/GovHickenlooper/CBON/1251634887823; Smoke the Vote, NORML,
normal.org/about/smoke-the-vote#co (last visited Mar. 26, 2013); Joel Connelly, Washington
Passes Measure to Legalize, Regulate, and Tax Marijuana, SEATTLE PI (Nov. 6, 2012, 9:02 PM),
http://blog.seattlepi.com/seattlepolitics/2012/11/06/initiative-502-passes-to-legalize-regulate-and-
tax-marijuana/.

161. Gonzales v. Raich, 545 U.S. 1, 15, 32-33 (2005).
162. Aaron Smith, Marijuana Legalization Passes in Colorado, Washington, CNN MONEY

(Nov. 8, 2012, 11:46 AM), http://money.cnn.com/2012/11/07/news/economy/marijuana-
legalization-washington-colorado/index.html.

163. Frank Newport, Record-High 50% of Americans Favor Legalizing Marijuana Use,
GALLUP (Oct. 17, 2011), http://www.gallup.com/poll/150149/Record-High-Americans-Favor-
Legalizing-Marijuana.aspx?utm_source=alert&utm_medium=email&utm_campaign=
syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines.

164. Id.



546 INDIANA LAW REVIEW [Vol. 46:529

is the most significant development in the fight for marijuana legalization.
The history of cannabis plants in the United States goes back to its roots in

the colonies.  Throughout much of history, marijuana use in the United States
was not a matter of government concern.  Only when politics came into play in
the 1930s, and again in the 1970s, with politicians and bureaucrats playing on
racist sentiments and relying on factual fallacies, did marijuana use become
illegal.165  Studies and surveys show that marijuana users comprise a significant
percentage of U.S. citizens, such as the 2011 Gallup Poll that indicated the
majority of U.S. citizens are in favor of legalizing marijuana.166  It is the position
of this Note that past and present public opinion indicates the Constitution should
protect an individual’s decision to use marijuana as a bodily autonomy
fundamental right.

B.  Comparing the Vices
Although the history of marijuana in the United States creates a strong

argument for its inclusion as a bodily autonomy right, history alone is not enough
to place it under that umbrella.  However, a comparison of marijuana’s history
to that of other drugs, most notably the legal vices of alcohol and tobacco,
strengthens the argument.  There are three general categories or reasons
examined by this Note for why the government legalizes drugs: (1) impact on
human health and physiology; (2) potential for abuse and dependence; and (3)
relation to crime.  This Note will cover marijuana’s relationship to crime when
discussing applying strict scrutiny to marijuana prohibition in Part III.  Part III
will also examine health issues related to marijuana use.

1.  Health and Physiology.—Tobacco and alcohol—not to mention other
illegal substances and prescription drugs—have a much greater negative effect
on health and physiology than marijuana.  “The smoking of cannabis, even long-
term, is not harmful to health . . . .  It would be reasonable to judge cannabis as
less of a threat . . . than alcohol or tobacco.”167  Lester Grinspoon has gone so far
as to say, “Despite its use by millions of people over thousands of years, cannabis
has never caused a death.”168  This stands in stark contrast to the indisputable fact
that alcohol-related deaths average more than 100,000 per year in the United
States, and tobacco causes more than 400,000 deaths in the United States each
year.169  It is true that individuals have died while high on marijuana, and likely
some have died because they undertook a task that they should not have
undertaken while high.  This Note’s discussion of applying strict scrutiny to
marijuana prohibition will further examine marijuana’s health effects.  However,

165. FRENCH & MANZANÁREZ, supra note 140, at 129-30; BOOTH, supra note 129, at 77.
166. Newport, supra note 163.
167. Editional, Deglamorizing Cannabis, 346 LANCET 1241 (1995).
168. Lester Grinspoon, Cannabis, the Wonder Drug, in THE DRUG LEGALIZATION DEBATE

101-02 (James A. Inciardi ed., 2d ed. 1999) [hereinafter Grinspoon, Wonder Drug].
169. J. Michael McGinnis & William H. Foege, Actual Causes of Death in the United States,

270 J. AM. MED. ASS’N 2207, 2207-12 (1993).



2013] MARIJUANA AND STRICT SCRUTINY 547

the fact that marijuana is less harmful than the legal vices of alcohol and tobacco,
in part shown by the number of deaths attributed to each of them each year, is an
incredibly strong argument for including marijuana as a bodily autonomy
fundamental right.  Finally, since 1969, government-appointed commissions in
five countries, including the United States, have concluded that marijuana’s
dangers had previously been exaggerated and urged their respective countries to
drastically reduce or eliminate penalties related to marijuana.170  

2.  Dependence.—The THC that makes marijuana users experience a high
is unlike many other drugs in that it has little addictive potential.171  The U.S.
Government once concluded that “users of marijuana are less likely to become
dependent on the drug in comparison to alcohol and nicotine.”172  Dependence
is an important issue, one that is often glossed over.  Every year, millions of
dollars are spent on campaigns and services for people to quit consuming
tobacco,173 and support groups, like Alcoholics Anonymous, are sometimes court-
ordered for those who have become dependent on alcohol to drop their habit.174 
It is true that these programs exist for marijuana users, but they are not as
prevalent as the government-funded anti-smoking campaigns.175  These programs
may also not be as necessary to help people to quit, as “cannabis appears to have
little addictive potential in the opinion of most experts, particularly when
compared to other common drugs, including caffeine.”176  Therefore, as
marijuana is not on the same level as alcohol and tobacco in terms of
addictiveness, it seems it would be protected under a bodily autonomy right as
this less addictive nature suggests marijuana will have the following effects: (1)
pose less of a cost for society in terms of quit smoking campaigns; (2) have a
smaller number of habitual users than tobacco and alcohol, making long term

170. See ADVISORY COMM. ON DRUG DEPENDENCE, CANNABIS, HER MAJESTY’S STATIONERY
OFFICE (1968); CANADIAN GOV’T COMM. OF INQUIRY, THE NON-MEDICAL USE OF DRUGS,
INFORMATION CANADA (1970); NAT’L COMM’N ON MARIHUANA AND DRUG ABUSE,  MARIHUANA: 
A SIGNAL OF MISUNDERSTANDING (1972); WERKGROEP VERDOVENDE MIDDELEN, BACKGROUND
AND RISKS OF DRUG USE, STAATSUIGEVERIJ (1972); S. STANDING COMM. ON SOCIAL WELFARE,
DRUG PROBLEMS IN AUSTRALIA-AN INTOXICATED SOCIETY, AUSTRALIAN GOV’T PUBLISHING SERV.
(1977) [hereinafter Five Countries’ Reports].

171. Robert Gore & Mitch Earleywine, Marijuana’s Perceived Addictiveness: A Survey of
Clinicians and Researchers, in POT POLITICS: MARIJUANA AND THE COSTS OF PROHIBITION 176,
184-86 (Mitch Earleywine ed., 2007).

172. INST. OF MED., MARIJUANA AND MEDICINE: ASSESSING THE SCIENCE BASE 98 (Janet E.
Joy et al. eds., 1999) [hereinafter IOM REPORT].

173. Jodie Humphries, Anti-Smoking Programs, EHM (Dec. 11, 2009, 4:29 PM), available
at http://www.executivehm.com/news/anti-smoking-programs/.

174. See Buddy T., How Court-Ordered Alcoholics Anonymous Works, ABOUT.COM (last
updated Nov. 1, 2011), http://alcoholism.about.com/od/dui/a/How-Court-Ordered-Alcoholics-
Anonymous-Works.htm.

175. Melissa Weinman, Anti-Smoking Money Ill-Spent, RED & BLACK (Feb. 13, 2008, 12:00
AM), http://redandblack.com/2008/02/13/anti-smoking-money-ill-spent/.

176. Gore & Earleywine, supra note 171, at 185.



548 INDIANA LAW REVIEW [Vol. 46:529

health effects and costs associated with marijuana use less than those for tobacco
and alcohol; and (3) result in fewer violent crimes perpetrated for the purpose of
obtaining marijuana for personal use.

C.  Part II Conclusion: Marijuana’s Position Under an Autonomy Umbrella
Marijuana’s history in the United States, and in human history in a broader

sense, parallels the history of tobacco and alcohol.  For instance, both tobacco
and hemp were cash crops in the early United States, and both alcohol and
marijuana have been the object of a government prohibition that has given
criminal entities revenue through the black market sale of the substances during
the prohibition.  These similarities suggest that the law should treat alcohol,
tobacco, and marijuana similarly.  The similarities further suggest a bodily
autonomy right should cover marijuana because alcohol177 and tobacco use likely
already are protected under a privacy or bodily autonomy argument. 
Furthermore, as alcohol and tobacco—which are proven to be generally more
harmful to health and more addictive than marijuana when consumed—are legal
for individuals to choose to consume, it is reasonable to think that a bodily
autonomy right would protect marijuana consumption in the same way.

III.  STRICT SCRUTINY APPLIED
If a court were to apply strict scrutiny to the federal prohibition of marijuana

use, the federal government would have to show a compelling interest in
prohibiting marijuana use as well as demonstrate that complete prohibition of
marijuana is narrowly tailored to further that interest.178

A.  Compelling Interest
The first aspect of strict scrutiny is the government’s responsibility to show

that it has a compelling interest in restricting the right.179  Examples of
compelling government interests the judiciary has accepted as “compelling”
include protecting children from abuse180 and preventing voter fraud.181  Three
interests the federal government could give to warrant marijuana prohibition are

177. See Herman v. State, 8 Ind. 545, 555 (Ind. 1855).
178. See Roe v. Wade, 410 U.S. 113, 155 (1973); Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 539, 541 (1942).
179. Roe, 410 U.S. at 155; see also Skinner, 316 U.S. at 541.
180. New York v. Ferber, 458 U.S. 747, 756-57 (1982).
181. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam).



2013] MARIJUANA AND STRICT SCRUTINY 549

as follows: marijuana use is immoral;182 marijuana use is related to crime;183 and
marijuana use has negative effects on health.184

1.  Morality.—The government could attempt to prohibit marijuana using
morality as its compelling interest.185  It is important to note that courts have been
at least skeptical of purely moral interests of the government—i.e., those interests
that have only to do with enforcing what is “right”—comprising a compelling
interest in terms of strict scrutiny.186  It is the position of this Note that any
United States government entity, whether state or federal, enforcing any “moral”
interest with no tangible effect on issues generally regulated by the government,
such as matters of contract and property, is overreaching as a violation of
separation of church and state.  The United States is founded on ideas of personal
liberty, including the right to decide our own religion and morals.187  Whether the
government should be permitted to assert morality as an interest at all in terms
of satisfying due process tests is beyond the scope of this Note.  Here, it is
sufficient to say that a purely moral interest in prohibiting marijuana would, in
all likelihood, fail to comprise a compelling interest, as the competing interest of
bodily autonomy is arguably one of the most important basic human rights of any
individual.188

2.  Crime and Use.—The government could also argue the prohibition of
marijuana is warranted because the government has a compelling interest in
controlling crime,189 and due to marijuana’s relation to crime, decriminalization
of marijuana will result in an increased number of users as well as increased
crime.  A 2003 study examines several states where marijuana had been
decriminalized—meaning there was a reduction of the penalties imposed for
simple possession—found that this decriminalization did increase use among
high school students.190  However, the increase was only 2%.191  Furthermore,
studies in jurisdictions that decriminalized marijuana use in the 1970s showed

182. See Washington v. Glucksberg, 521 U.S. 702, 772 (1997) (discussing the six state
interests of (1) preserving life; (2) preventing suicide; (3) avoiding the involvement of third parties
and use of arbitrary, unfair, or undue influence; (4) protecting family members and loved ones; (5)
protecting the integrity of the medical profession; and (6) avoiding future movement toward
euthanasia and other abuses).

183. See Moran v. Burbine, 475 U.S. 412, 426 (1986) (discussing the compelling interest in
finding, convicting, and punishing those who violate the law).

184. Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975).
185. See Glucksberg, 521 U.S. at 772.
186. See Lawrence v. Texas, 539 U.S. 558, 578-579 (2003).
187. See U.S. CONST. amend. I.
188. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more sacred,

or is more carefully guarded by the common laws than the right of every individual to the
possession and control of his own person.”).

189. See Moran v. Burbine, 475 U.S. 412, 426 (1986).
190. Rosalie Licardo Pacula et al., Marijuana Decriminalization: What Does It Mean in the

United States? 8-9, 17 (Nat’l Bureau of Econ. Research, Working Paper No. 9690, 2004).  
191. Id. at 17.



550 INDIANA LAW REVIEW [Vol. 46:529

very little effect on use patterns.192  Regarding marijuana’s relationship to crime,
marijuana is the least likely out of marijuana, cocaine, and heroin to generate
criminal activities because (1) the method of dealing marijuana is discreet; (2)
very little marijuana is required to get high; and (3) a marijuana high typically
does not trigger violence.193  These, and possibly other factors, suggest “[m]aking
marijuana legally available to adults on more or less the same terms as alcohol
would tend to reduce crime.”194

The flip side of the crime discussion is that federal and state governments are
spending huge sums of money to enforce the prohibition of marijuana.  A study
in 2004 claimed that Alaska was spending around $25 million per year to enforce
marijuana prohibition laws.195  A separate study in 2003 concluded that
Massachusetts spends around $120.6 million per year on marijuana prohibition
laws.196  On a national level, a report in 2004 estimated that the national criminal
justice system could spend as much $7.6 billion enforcing marijuana laws in a
year.197  This is in spite of the fact that the Global Commission on Drug Policy,
which included individuals such as former Secretary General of the United
Nations, Kofi Annan, indicated, “The global war on drugs has failed, with
devastating consequences for individuals and societies around the world . . . .
End the criminalization, marginalization and stigmatization of people who use
drugs but who do no harm to others.”198  In light of this, the large sums of money
being spent by U.S. jurisdictions would be better spent elsewhere, especially in
a time when most state governments are struggling to balance their books, and
the federal government faces the prospect of further credit score downgrades due
to out of control federal debt in the trillions of dollars.

Therefore, although government prevention of crime is admittedly a
compelling government interest, decriminalizing marijuana would better serve
that and other interests much more effectively than continued government

192. L. Johnson et al., Marijuana Decriminalization: The Impact on Youth 1975-1980, INST.
FOR SOC. RES., Occasional Paper Series: Paper 13 (1981); Clifford F. Thies & Charles A. Register,
Decriminalization of Marijuana and the Demand for Alcohol, Marijuana and Cocaine, 30 SOC.
SCI. J. 385, 399 (1993).

193. David A. Boyum & Mark A. R. Kleiman, Substance Abuse Policy from a Crime-Control
Perspective, in CRIME:  PUBLIC POLICIES FOR CRIME CONTROL 331, 341 (James Q. Wilson & Joan
Petersilia eds., 2002).

194. Id. at 344.
195. Scott W. Bates, The Economic Implications of Marijuana Legalization in Alaska,

ALASKANS FOR RTS. & REVENUES, at iv-v (2004), http://www.prohibitioncosts.org/wp-content/
resources/FinalBatesreport.pdf.

196. Jeffrey A. Miron, The Budgetary Implications of Marijuana Legalization in
Massachusetts. CHANGE THE CLIMATE 1, 11 (Aug. 2003), http://www.changetheclimate.org/bu-
study/mass_budget.pdf.

197. JON B. GETTMAN, CRIMES OF INDISCRETION: MARIJUANA ARRESTS IN THE UNITED STATES,
NAT’L ORG. FOR THE REFORM OF MARIJUANA LAWS 115 (2004), available at http://norml.
org/pdf_files/NORML_Crimes_of_Indiscretion.pdf.

198. GCDP REPORT, supra note 126, at 2.



2013] MARIJUANA AND STRICT SCRUTINY 551

prohibition.
3.  Health.—Again, the health aspects of marijuana use come into play

because the government could argue it has a compelling interest in protecting
public health, and smoking marijuana can be harmful.199  The Supreme Court has
recognized a compelling interest for public health, but this compelling interest
is attached to the states’ police power200 and may not be applicable to the federal
government.

It is important to note there are methods for using marijuana other than
smoking it.201  These include vaporizers, edibles, and alcohol tinctures.202 
Ingesting marijuana does not have any of the smoke-related effects on the lungs
that smoking marijuana has.  This is arguably the primary health concern
regarding marijuana use.  The American College of Physicians has indicated
marijuana has the potential to be used safely under appropriate conditions.203 
Furthermore, marijuana appears to have a therapeutic benefit, even according to
the government, as evidenced by the successful patent application.204

Again, as earlier, it must be noted that government-appointed commissions
in the United States, Germany, Canada, the UK, and Australia have reviewed the
scientific evidence and concluded that marijuana’s dangers had previously been
exaggerated.205  These commissions urged their respective countries to drastically
reduce or eliminate penalties related to marijuana.206  The existence of these
studies is a strong argument against any government assertion that maintaining
public health would be a compelling interest for marijuana prohibition. 
Furthermore, there has never been a recorded death attributed to marijuana
overdose,207 but deaths related to the two primary legal vices in the United States,
alcohol and tobacco, approach 100,000 and 400,000 lives, respectively, each
year.208  Again, any argument by the government that ensuring public health

199. See Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (finding that states have a
compelling interest in professional practices within state borders).

200. Id.
201. See, e.g., Marijuana Tincture, PATIENTS FOR MED. CANNABIS, http://patients4medical

marijuana.wordpress.com/medical-use-of-cannabis-video/marijuana-tincture/ (last visited Mar. 26,
2013) (An alcohol tincture is a solution of alcohol or of alcohol and water, containing animal,
vegetable, or chemical drugs.  In this instance, the THC from the marijuana is transferred from the
plant itself into the alcohol.).

202. Id.
203. TIA TAYLOR, AM. COLL. OF PHYSICIANS, SUPPORTING RESEARCH INTO THE THERAPEUTIC

ROLE OF MARIJUANA 1 (2008), available at http://www.acp.online.org/advocacy/where_we_stand/
other_issues/medmarijuana.pdf.

204. Cannabinoids as Antioxidants and Neuroprotectants, U.S. Patent No. 6,630,507 (filed
Feb. 2, 2001) (issued Oct. 7, 2003) (patent rights assigned to the U.S. Department of Health and
Human Services).

205. See supra text accompanying note 170.
206. Id.
207. Grinspoon, Wonder Drug, supra note 168, at 101-02.
208. Id.; McGinnis & Foege, supra note 169, at 2207-12.



552 INDIANA LAW REVIEW [Vol. 46:529

would be a compelling interest to allow the government to prohibit marijuana use
is undermined by the fact that there were no deaths in the United States directly
attributed to marijuana use in 2009.209

Lester Grinspoon, who was later an Associate Professor Emeritus in
Psychiatry at Harvard Medical School, declared in 1971, “The single greatest risk
encountered by the user of marihuana in any state in this country is that of being
apprehended as a common criminal, incarcerated, and subjected to untold
damage to his social life and career.”210  Any health argument for a compelling
interest made by the United States federal government would likely fail as
marijuana simply is not as harmful as the federal government once claimed, and
it is less harmful than alcohol and tobacco, both of which are legal at a certain
age in the United States.

4.  Conclusion: Compelling Interest.—The facts simply do not support the
position that the U.S. Government has a compelling interest in prohibiting
marijuana use.  Any argument related to morality made by the U.S. Government
will at least be met with harsh skepticism from the judicial wing; allowing such
a morality argument would send a damaging message to a federal government
that has always been constrained by the notion of separation of church and state. 
Furthermore, it is difficult for a financially stretched and vastly unpopular
legislative branch of the federal government to even voice an argument for the
regulation of  marijuana use due to its “relationship to crime” when any
relationship that exists between the two is likely a direct effect of the prohibition
the government would be defending.  Finally, scientific evidence suggests
marijuana is simply not as dangerous as the U.S. Government once claimed,
especially when compared to other substances the government allows adult
individuals the choice to use.  If any compelling government interest exists in
prohibiting marijuana use in the United States, it is not related to morality, an
independent cause of crime, or marijuana’s health effects.

B.  Narrowly Tailored
Even if the government can scrape up a compelling interest for infringing on

the bodily autonomy right through marijuana prohibition, it must also
demonstrate the current law of a complete marijuana prohibition is narrowly
tailored to meet whatever compelling interest is cobbled together.211  There are
two reasons that any government attempt in this regard would fail:  (1) the
current prohibition on marijuana use also prohibits the growing of industrial
hemp; and (2) the current prohibition on marijuana use also prohibits the use of
marijuana as a medical remedy.

1.  Industrial Hemp.—Industrial hemp has been an important crop for the

209. Annual Causes of Death in the United States, DRUGWARFACTS.ORG, http://www.
drugwarfacts.org/cmc/Cause_of_Death#sthash4eMkbk42.dpbs (last visited Mar. 26, 2013); About
Marijuana, NORML, http://norml.org/marijuana (last visited Mar. 26, 2013).

210. Grinspoon, Wonder Drug, supra note 168, at 2.
211. See Roe v. Wade, 410 U.S. 113, 155 (1973).



2013] MARIJUANA AND STRICT SCRUTINY 553

majority of the United States’s history.212  In 1619, the Jamestown Colony passed
a law making it illegal not to grow hemp.213  Colonies in Massachusetts and
Connecticut passed similar laws in 1631 and 1632.214  Hemp was also produced
on a massive basis for the war effort during World War I and World War II.215

From the colonial period until the middle of the nineteenth century, hemp
was a major crop in the United States due to its use as fabric, twine, and paper.216 
Despite the rise of the use of cotton due to technological advances,217 farmers in
the United States continued to grow hemp as a rotation crop because it is a
natural herbicide.218

Over the last seventy years, federal agencies’ interpretations of narcotics
laws, alongside the policies implemented in reliance on those interpretations,
have completely obstructed the cultivation of industrial hemp such that domestic
crops of hemp have not been grown in the United States since 1958.219  Industrial
hemp contains only a fraction of the amount of THC that the drug marijuana
contains.220  In fact, hemp plants contain approximately less than .03% THC
compared to the drug marijuana, which contains 3-15%.221

Today, hemp is cultivated in more than thirty countries,222 and it can be
called a cash crop for several reasons.  First, hemp has twice the “tensile
strength” of cotton,223 but it does not require the harmful chemical pesticides
needed by cotton.224  Second, hemp paper lasts for more than two
centuries—three times longer than wood pulp paper—and hemp paper does not
yellow as it ages.225  Also, wood pulp paper requires the use of nonrecyclable
sulfuric acid for bleaching, but hemp paper can be processed with recyclable
caustic soda.226  Finally, like fish oils, hemp oil contains high amounts of omega-
3, a fatty acid the FDA has advised may reduce coronary heart disease.227

212. See Affidavit of David P. West, Ph.D., supra note 130; HERER, supra note 109, at 1.
213. See Affidavit of David P. West, Ph.D., supra note 130; HERER, supra note 109, at 1. 
214. HERER, supra note 109, at 1.
215. Hemp and Marihuana: Hearing on H.R. 2348 Before the S. Comm. on Finance, 79th

Cong. 14-16 (1945) (statement of George E. Farrell, Agric. Specialist, Bureau of Agric. Econ., U.S.
Dep’t of Agric.) [hereinafter Hearing on H.R. 2348].

216. RAWSON, supra note 108, at 1.
217. Id. at 1-2.
218. Hearing on H.R. 2348, supra note 215.
219. RAWSON, supra note 108, at 2.
220. Id. at 4-5.
221. Kevin Bonsor, How Marijuana Works, HOWSTUFFWORKS.COM, http://science.

howstuffworks.com/marijuana5.htm (last visited Mar. 26, 2013).
222. Affidavit of David P. West, Ph. D., supra note 130, ¶ 68(a).
223. ROBERT DEITCH, HEMP—AMERICAN HISTORY REVISITED: THE PLANT WITH A DIVIDED

HISTORY 221 (2003) (citing II ENCYCLOPEDIA AMERICANS 168 (1956)).
224. Id. at 221-22.
225. Id. at 219.
226. Id.
227. Affidavit of Dr. T. Randall Fortenberry, Ph.D., ¶ 8, Monson v. Drug Enforcement



554 INDIANA LAW REVIEW [Vol. 46:529

The current marijuana prohibition effectively prohibits the cultivation of
industrial hemp—a historic cash crop of the United States with a wide range of
useful applications; as a result, the prohibition is not narrowly tailored even
assuming a compelling government interest exists in prohibiting marijuana use.

2.  Medical Marijuana.—In the mid-nineteenth century, the U.S.
Pharmacopeial Convention (“USP”), a scientific nonprofit organization that sets
standards for the quality, purity, identity, and strength of the medicines, food
ingredients, and dietary supplements manufactured, distributed and consumed
worldwide,228 listed cannabis as appropriate for treating fatigue, coughing fits,
asthma, rheumatism, delirium tremens, migraine headaches, and menstrual
symptoms.229  By 1900, use of cannabis as a medication had greatly fallen into
disuse because it (1) was insoluble in water; (2) could not be injected via
hypodermic syringe; (3) varied greatly in potency; (4) was difficult to standardize
into doses; and (5) could not compete with newer, synthetic drugs designed to
remedy the same ailments.230  In 1942, cannabis was removed from the U.S.
Pharmacopoeia.231

In 1999, the Institute of Medicine (“IOM”) published a study on the risks and
benefits of marijuana-as-medicine.232  It described marijuana’s substantial
analgesic effects as well as its moderate success as an anti-emetic and appetite
stimulant.233  The 1999 IOM study concluded though marijuana was not
“completely benign,” there was enough evidence of a therapeutic effect to
warrant further research.234  Several synthetic versions of the active agent in
marijuana, THC, are approved by the FDA for treating appetite problems in
cancer and HIV/AIDs patients.235  “Seventy-eight percent of Americans
supported the [legality] of doctor-prescribed marijuana in the treatment of pain
and suffering” in a November 2005 Gallup Poll.236

The fact the current federal prohibition of marijuana applies to marijuana’s
medical uses, which are medically documented and sworn to by cancer and
HIV/AIDs patients, shows the prohibition is not narrowly tailored even assuming
a compelling government interest exists in prohibiting marijuana use.

Admin., 589 F.3d 952 (8th Cir. 2009) (No. 4:07-cv-00042).
228. About USP, U.S. PHARMACOPEIAL CONVENTION, http://www.usp.org/aboutUSP/ (last

visited Mar. 26, 2013).
229. HERER, supra note 109, at 9.
230. LARRY RASTO SLOMAN, REEFER MADNESS: A HISTORY OF MARIJUANA 26 (1979).
231. Cannabis and Cannabinoids, NAT’L CANCER INST., http://www.cancer.gov/cancertopics/

pdq/cam/cannabis/healthprofessional/page3 (last modified Mar. 21, 2013).
232. IOM REPORT, supra note 172.
233. Id.
234. Id.
235. See RAY & KSIR, supra note 105, at 415-17 (“compassionate use protocol”); IOM

REPORT, supra note 172; Nabilone, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a607048.html (last visited Mar. 26, 2013).

236. Ruth C. Stern & J. Herbie DiFonzo, The End of the Red Queen’s Race: Medical
Marijuana in the New Century, 27 QUINNIPIAC L. REV. 673, 676 (2009).



2013] MARIJUANA AND STRICT SCRUTINY 555

3.  Conclusion: Narrowly Tailored.—The current federal marijuana
prohibition extends to encompass two uses of cannabis plants that are historically
important as well as useful for today’s society.  Therefore, it is likely marijuana
prohibition would fail strict scrutiny’s narrow tailoring requirement. 

C.  Part III Conclusion: A Failing Grade
In all likelihood, the current federal prohibition of marijuana would fail both

requirements for constitutionality under a strict scrutiny analysis.  There exists
no compelling government interest related to morality, crime or health the
government can point to in support of its prohibition of marijuana, and the
current prohibition is not narrowly tailored because it outlaws the production of
the cash crop industrial hemp as well as marijuana for its medically recognized
uses.  

D.  Judicial Activism?
In general, courts tread the boundaries of Article 3 rarely, and then only with

caution and care as evidenced by the refusal of courts to address political
questions.237  This respect of separation of powers on the part of the courts is an
important aspect of the United States political system and is something that
should be dealt with using the utmost gravity.  That being said, courts since
Marbury v. Madison238 have been the final arbiters regarding what is and is not
constitutional, as well as interpreters of what the Constitution actually says.239 
It is in this spirit that many of the civil rights we enjoy today have been extracted
out of a document that is in all actuality quite bare.  Segregation could still be in
place today without the bravery and tact displayed by the Court in Brown v.
Board of Education.240

Although there is an argument to be made that it is Congress’s responsibility
to withdraw the federal prohibition of marijuana rather than the Court’s duty to
declare it invalid, the argument is a weak one given the Court’s indispensable
role in developing, refining, and enforcing civil rights.  If the Court adhered to
such a strict belief, judicial review would have no meaning, and we would have
no fundamental right to privacy, travel, access to the courts, or to vote.  In short,
although it is not in the Court’s interest, or power, to nonchalantly gallivant into
the realms properly occupied by the legislative and executive branches, that is
not the case here.  Here, there exists a constitutional right more important than
any other, the interest we all have as humans in our own person, which must be

237. E.g., Baker v. Carr, 369 U.S. 186, 208-34 (1962) (discussing when a political question
is justiciable and when it is not).

238. Marbury v. Madison, 5 U.S. (1 Cranch) 37 (1803).
239. E.g., Lawrence v. Texas, 539 U.S. 558, 564, 574, 578-79 (2003) (finding intimate

consensual sexual conduct was part of the liberty protected by substantive due process under the
Fourteenth Amendment).

240. Brown v. Bd. of Educ. 347 U.S. 483 (1954), supplemented by Brown v. Board of Educ.,
347 U.S. 83 (1955).



556 INDIANA LAW REVIEW [Vol. 46:529

accorded its rightful status with all due haste, lest the infringements on this right
grow in number and magnitude.

IV.  THE LOGICALLY DEFENSIBLE POSITION: A CONCLUSION OF SORTS
In life, there are few things we should take for granted, few things that cannot

be taken from us.  Our own body is one of these things.  The decision of what to
do with our own self is solely our own, and this decision can never be fully taken
away.  Even a prisoner may decide to sit or stand, pray or curse.  This right we
have in what happens to our body has no recognition in our current system of
ordered liberty despite a long list of Supreme Court opinions opining about its
importance.241  In light of this, the Court should recognize, in more than dicta, a
fundamental right to bodily autonomy.  Furthermore, the cannabis plant’s history
in the United States dates back to the early colonies, where it was a mandatory
crop for everyone to grow.  In fact, marijuana use itself was illegalized for mainly
political reasons.  Given this history, a fair comparison of this naturally occurring
plant to tobacco and alcohol, both legal vices in the United States,
overwhelmingly suggests that marijuana should fall under a bodily autonomy
right as it is far less harmful than these legal substances.  Finally, there exists no
compelling government interest in infringing on the bodily autonomy right by
way of marijuana prohibition related to morality, the connection between
marijuana and crime, or safeguarding the public health.  Even if a dark horse
compelling interest were to emerge, the fact that the current federal prohibition
of marijuana also prohibits growing industrial hemp or using marijuana for its
medical purposes means said prohibition is in no way narrowly tailored.

Therefore, the Supreme Court should: (1) recognize a fundamental right to
bodily autonomy; (2) include marijuana use in this right; and (3) strike down the
current federal prohibition of marijuana for failing to meet strict scrutiny.

241. See discussion supra Part I.A.