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Do dying people have a ‘right to try’ magic mushrooms? 9th Circuit weighs case

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Elderberry:
American Military News by Kevin Rector - Los Angeles Times  May 09, 2024

Do dying patients have a “right to try” illegal drugs such as psilocybin and MDMA if they might alleviate end-of-life suffering from anxiety and depression?

That question is now before one of the nation’s highest courts, with a Seattle-based palliative care physician appealing a U.S. Drug Enforcement Administration decision barring him from prescribing psilocybin to his late-stage cancer patients.

Dr. Sunil Aggarwal says he has a right to prescribe psilocybin — the hallucinogenic compound in “magic mushrooms” — under state and federal “right to try” laws, which give terminal patients access to experimental drug therapies before they are approved by the U.S. Food and Drug Administration. More than 40 states, including Washington and California, have such laws in place, and Congress passed a federal version in 2018.

“I have patients who want to try psilocybin-assisted therapy for existential distress,” Aggarwal said in an interview with The Times. “And there are lots of studies that support that.”

The DEA has denied Aggarwal’s request, arguing that therapeutic use of psilocybin remains banned — even for terminal patients — under the Controlled Substances Act of 1970, which lists the drug as a “Schedule I” narcotic with no recognized medical use. The agency said Aggarwal could only work with the drug if he received a license to do so as a researcher, not as a regular part of his palliative care practice.

The case is one of two Aggarwal now has pending before the 9th Circuit, each pitting the DEA’s law enforcement authority against state powers to regulate medicine. In the second case, Aggarwal is asking the DEA to simply reschedule psilocybin, making it available for therapy — not just research.

Physicians and medical experts across the country are closely watching the “right to try” case, and eight states and the District of Columbia have weighed in directly in support of Aggarwal.

In February, the state coalition filed a brief that accused the DEA of reaching far beyond its law enforcement role of preventing the illegal diversion of powerful narcotics. They said the DEA’s assertion that the Controlled Substances Act trumps state right-to-try laws represented a “threat to state sovereignty.”

“If accepted, DEA’s interpretation would ratify federal involvement in some of the most wrenching decisions a person can make, based on the most ‘attenuated’ relationship to any conceivable federal interest,” Washington Deputy Solicitor General Peter Gonick wrote on behalf of the coalition.

Gonick said there is no reason to believe that allowing psilocybin to be given to terminal patients under doctor supervision “will substantially affect any interstate market in such substances or otherwise contribute to illicit use, even in the aggregate.”

More: https://americanmilitarynews.com/2024/05/do-dying-people-have-a-right-to-try-magic-mushrooms-9th-circuit-weighs-case/

The_Reader_David:
That's okay, thanks to Wicker v. Filburn, there's no need to substantially affect an interstate market for the Feds to get involved.  Growing wheat for one's own family didn't substantially affect interstate commerce, but even the miniscule effect of withdrawing the family from participation in interstate commerce in wheat was held sufficient for the Feds to prohibit it.

(It will be great if Chevron gets overturned, but to really gut the administrative state, Wicker v. Filburn needs to go as well.)

roamer_1:
Well I am surprised that @corbe hasn't chimed in... He prolly has em in his garden.  :whistle: :tongue2:

Hoodat:
Why even ask?  Just hang out in a cow field the morning after it rains.

PeteS in CA:
A couple of stories from a family member who works with a hospice organization (not a hospice in-patient facility):

* A hospice patient living in a skilled nursing facility (SNF) was given written permission by their doctor to have "one or two beers" a day, as they desired. The SNF asked the hospice organization to clarify what "a beer" is. While this was probably given the attitude of the hospice people was, "(S)He's dying. Who cares how many ounces 'a beer' is?"

* One of the requirements for hospice care (Medicare, and probably private insurance) is a good-faith diagnosis by the patient's PCP that the patient has less than 6 months of life remaining. Many patient at this family member's hospice die within 2 weeks; most die within the 6 months, but a few live longer, a few of those live for a year or more, and a few of those go off hospice, because their condition improved.

That's the question a PCP and hospice attending physician have to discern/balance - is the patient really in the process of dying, and if they are, how much does it matter if they get intoxicated (by whatever)?

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