Eight State AGs Join Cancer Patients in Suing DEA Over Psilocybin

Cancer patients looking to legally consume psilocybin — the psychedelic compound in so-called magic mushrooms — got a boost after a bipartisan group of attorneys general from eight states and the District of Columbia sided with them in their lawsuit attempting to force the federal Drug Enforcement Administration (DEA) to let them consume the fungi as a part of their end-of-life care. 

Washington state, Arizona, Delaware, Illinois, Michigan, Minnesota, Ohio and Oregon, joined the suit. 

“Forty-one states have passed ‘Right to Try’ laws,” the petition states. “These laws allow access to investigational medical treatments for eligible patients who lack the time to wait for federal approval. Petitioners in this case seek access to psilocybin therapy, which is currently in Phase 2 of federal clinical trials.”

The suit says that ‘Right to Try’ laws are more specific and should be followed over the DEA scheduling, and it suggests the DEA should have nothing to do with medicine.

The original suit came from patients and Seattle-based palliative care physician Dr. Sunil Aggarwal in March after the agency denied their application to legally use a synthetic form of the drug under state and federal Right to Try (RTT) laws, which give patients with terminal conditions the opportunity to try investigational medications that have not been approved for general use. Psilocybin has passed Phase 1 of clinical trials but is not yet fully approved.

The state of Washington unanimously adopted a right-to-try law in 2017, and former-President Donald Trump signed the federal Right to Try Act the following year. All told, 41 state legislatures have adopted similar legislation.

The suit notes the therapeutic potential of not only psilocybin but also MDMA. 

“Here, dying patients seek access to promising new treatments still in the investigative process — access expressly permitted under both state and federal law — to help them live in peace.”  

the AGs write

The brief mentions a 2006 Supreme Court decision, Gonzales v. Oregon, in which the high court ruled the Controlled Substances Act (CSA) didn’t permit the US attorney general to “bar dispensing controlled substances for assisted suicide in the face of a state medical regime permitting such conduct.”

But the act continues to block the way for patients to access the medicine they desperately want.

“Framing its effort to undermine democratic processes at the state and federal levels as an act of administrative restraint, DEA claims it lacks the authority to waive the CSA’s requirements to permit therapeutic use for these patients,” the attorneys general wrote. 

Aggarwal and the clinic where he works in Seattle — the Advanced Integrative Medical Science (AIMS) Institute — wrote to the DEA earlier this year asking for guidance on how to move forward on psilocybin under right-to-try laws. 

The DEA rejected the application on the grounds the agency lacks the authority to waive the federal Controlled Substances Act, despite what the federal Right to Try Act says. 

Oral arguments in the case could begin as soon as September.

The lawsuit comes at a time when many states and municipalities are rethinking their approach to decriminalizing psychedelics and their use in therapy. Oregon approved initiatives to legalize psilocybin for therapeutic purposes and decriminalize drugs in November — along with voters in the nation’s capital — and a California bill to legalize the possession of many psychedelics is heading for the state Senate floor.

This piece is a part of a content sharing agreement with Marijauna Moment.

Ben Adlin is a Seattle-based writer and editor. He has covered cannabis as a journalist since 2011, most recently as a senior news editor for Leafly.

Ben Adlin is a Seattle-based writer and editor. He has covered cannabis as a journalist since 2011, most recently as a senior news editor for Leafly.

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