Nebraska Legislature Strikes Down Medical Cannabis

One point was front and center during a day-long medical cannabis debate in Nebraska on Wednesday: if lawmakers don’t pass a tightly-crafted medical cannabis bill, voters will pass a more permissive measure by ballot as soon as November 2022. 

Still, the legislature stopped short of the necessary votes to overcome a filibuster of LB 474, which would have legalized and regulated  cannabis for medical use. The bill would not have allowed for smokable products or home cultivation. 

“My bill to legalize medical cannabis fell two votes short of overcoming a filibuster. To the courageous senators who voted in favor, all 31 of you, I am forever grateful. To the families, I am sorry I failed again and I promise not to give up. Now onward to the ballot,” Nebraska Senator Anna Wishart, co-chair of Nebraskans for Medical Marijuana and key sponsor of the bill, tweeted Wednesday night. 

Wishart has been pushing for medical cannabis in Nebraska for years. She spearheaded an effort to collect signatures last year during the COVID-19 pandemic for a measure that, despite qualifying for the ballot, was upended by a lawsuit brought by the Sheriff of Lancaster County. The Nebraska Supreme Court ultimately blocked the medical cannabis measure from appearing on the November ballot, an unprecedented outcome for a cannabis-related state ballot measure. 

“A lot has changed since I was here before you, bringing a bill in 2019 and in 2018 and in 2017,” Wishart said, noting that signatures were collected in every county, despite the pandemic, and most of them in a month’s time. “We’ve grown a movement.”

As Wishart said repeatedly during Wednesday’s debate, she’s ready to hit the roads to collect signatures again and that the next ballot measure will be a “one sentence constitutional amendment.” 

“Had it not been for a last minute lawsuit and five judges, we were certified in going to a vote of the people. And our polling, which we’ve done continuously, shows that Nebraskans overwhelmingly this issue,” Wishart said. “No amount of money or opposition is going to silence the people of Nebraska on this issue. And I know a lot of money is already being spent. I know there is out-of-state money and TV ads and thousands of mailers that went to your districts.”

Gov. Pete Ricketts has been a particularly vocal opponent of medical cannabis, writing in a February blog post: “States that legalize marijuana outright or incrementally (that is, through “medical marijuana”) have seen a human toll. This has included devastating effects on kids, tragic accidents, decreased participation in the workforce, and horrible mental health outcomes.”  

Wishart walked lawmakers through the proposed bill, which would’ve allowed patients with qualifying conditions like cancer and epilepsy to access, with a written recommendation from a medical professional, regulated medical cannabis from a registered provider. Out-of-state patients would be eligible, too. 

Wishart laid out some of the limits of the bill, including that patients could possess up to 2.5 ounces of medical cannabis in any form, as long as it is non-smokable. 

“This is one of the most conservative possession levels in the country. We modeled it after ,” Wishart said, adding that the bill has some of the strongest gun rights-related language in the country, too. 

Wishart talked about collecting signatures in “some of the most rural parts of our country,” and how those experiences justified her “confidence” in the medical cannabis issue. 

“This bill will not fail because of a lack of compromise and thoughtfulness in the part of myself and medical cannabis advocates. If it fails to pass, it is because of the political pressure from a few who wield their power to stamp out the voice of people,” Wishart said. 

Nebraska is one of the last remaining few states in the country that doesn’t have some type of medical cannabis law, a point repeated by the bill’s supporters on Wednesday. 

“It’s time for Nebraska to join the majority of states in treating patients like they are sick people, not criminals,” Wishart said. 

Senator Julie Slama said that while she appreciates Wishart’s work on medical cannabis, she is opposed to the bill because she believes that the bill is an “unconstitutional piece of legislation.” 

Slama read part of an August 2019 opinion from state Attorney General Douglas Peterson, which concluded that that creation of a state regulatory scheme for medical cannabis would “affirmatively facilitate the cultivation, processing, wholesale distribution, and retail sale of federal contraband on an industrial scale, would frustrate and conflict with the purpose and intent of the [Controlled Substances Act].”

Senator Adam Morfeld, co-chair of Nebraskans for Medical Mariuana with Wishart, said that the “does not agree with the attorney general’s opinion,” citing the dismissal, in 2012, of a lawsuit brought forth against the Department of Justice by then Arizona Governor Jan Brewer, seeking to determine whether the state’s medical cannabis law was preempted by federal law. 

“The attorney general can write as many opinions as they want, but their opinion is in conflict with the same sovereign body, the same government that they are supposedly saying that this proposed legislation is preempted by,” Morfeld said. 

Senator Mike McDonnell said that he’s thought a lot about medical cannabis and referenced a family whose young daughter had seizures and had to obtain medical cannabis out of state. 

“You might not agree with her,” McDonnell said of Wishart, “but you can’t not say she’s not sincere and that she’s not trying to do something here for these people to help them and their families.” 

Lawmakers’ opposed to the bill cited the same concerns, from the rising concentration of THC in cannabis products to the lack of approval from the US Food and Drug Administration, to the lack of reliable testing for cannabis-impaired drivers. 

Senator Carol Blood apologized to constituents, like veterans and patients with glaucoma and AIDS, for their lack of access to medical cannabis.

“I’m sorry that propaganda and misinformation is preventing you from getting the treatment that you deserve,” Blood said. 

Senator Dave Murman said that his opposition was “not a political one,” but that he wanted to focus on a “particular unintended consequence,” he said, asking Wishart  how to determine whether a driver is under the influence of cannabis.

Wishart responded by describing the role of Drug Recognition Experts, or members of law enforcement who are trained to detect impaired driving, and blood tests that show concentrations of THC. 

Senator Steve Lathrop spoke about his time as chair of the Senate Judiciary Committee and how, three years ago, Wishart introduced the first iteration of medical cannabis. Lathrop said that the first version was too permissive, but now, the bill has been amended and fine-tuned to the point that medical cannabis would be “treated like a drug” obtained from a pharmacy. 

“That’s what we have. That’s what the bill has been distilled to. Now we have an opportunity to have some control over what happens with medical marijuana,” Lathrop said, adding that medical cannabis already “almost made it on the ballot.” 

“Medical marijuana was a lay up,” he said. “This was not hard to get on the ballot.” 

The debate often returned to the federal government and fears over the consequences of creating a conflict with a medical cannabis law. 

“If I could put an analogy of where we are right now in the argument with the federal government, is there’s this huge mountain that we seem to think is absolutely insurmountable. But there is a trail all the way up that’s been trampled down by 48 other states and they’re just waving, like showing us how to get there. And we’re sitting down at the bottom of it saying, ‘Oh, but we can’t possibly do this. We just, we can’t possibly do it,’” Wishart said.  

Wishart also emphasized that when former President Donald Trump campaigned in 2016, he “talked about supporting medical cannabis,” she said, adding that Florida Gov. Ron DeSantis, “the beloved governor for conservatives,” supports medical cannabis, as well as conservative commentator Ben Shapiro. 

“This is not a one-party issue. This is overwhelmingly bipartisan. If we want the federal government to reschedule cannabis, then one of the best ways to do that is stop being one of the states that hold out on it,” Wishart said. 

Another recurring theme was gun rights. When potential gun owners go to buy a gun, they’re required to disclose illegal drug use, which, in the eyes of the federal government, includes state-legal medical cannabis. 

Wishart said that her legislation would set the “standard for other states” when it comes to medical cannabis patients and gun rights. 

“I actually worked with gun advocates on this bill to make sure that we have some of the strongest protections in place for Nebraska firearm owners so they don’t have to make the decision about whether they can get access to a treatment that will help their illness in terms of medical cannabis and having a firearm,” Wishart said. 

Senator Terrell McKinney said that he supports the medical cannabis bill because it’s “a step, it’s not a complete step, but it’s a step to end the disproportionate rates of arrest and convictions and things for people that look like me.” 

McKinney added that neighboring states have already moved to legalize some form of cannabis sales, so, he asked, do lawmakers want Nebraska to remain “competitive?” Or would they prefer to “sit in the Middle Ages?” 

Lathrop referenced , calling it a “wild west” because of the permissive approach to regulation of medical cannabis. This bill, Lathrop said, is the “last train out of town” to regulate medical cannabis.

“We will regret that we didn’t take advantage of the opportunity that this bill gave us,” Lathrop said.  

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