Health Politics

It was one drop of cannabis oil on top of a slice of angel food cake. That’s how Amy Stalker’s mother tried marijuana for the first time.

Almost a year into Stalker’s mother’s cervical cancer, the doctors told them the chemotherapy and radiation were not working. They advised Stalker that her mom should go into hospice. Her mother, Carolyn, died two weeks later.

There’s no such thing as medical marijuana in Kentucky. There’s only illegal marijuana, and that was the reason Stalker moved away from Kentucky to Colorado in 2013, and then to Washington state.

That way, Stalker said, she could use the drug — which she uses for medicinal purposes — legally. That part was important to her mother.

“She was never one of those to break the law, and that was one of the reasons I moved away, so I could have an open conversation with my family about following the law,” Stalker said.

Stalker is a plaintiff — along with Danny Belcher and Dan Seum Jr. — in a lawsuit filed in Franklin Circuit Court on Wednesday seeking to effectively legalize medical marijuana in Kentucky.

The suit, which names Gov. Matt Bevin and Attorney General Andy Beshear as defendants, argues that disallowing medical marijuana violates Kentucky residents’ right to privacy in their own homes, and that the state constitution does not allow Kentucky to create laws that are without reason.

Lisa Gillespie | wfpl.org

Amy Stalker poses with her medical marijuana license from Colorado and a prescription for the drug.

Novel Legal Concept

Once Stalker moved back to Kentucky from Washington — where she was prescribed medical marijuana — she had to start buying the drug illegally. The thought of getting caught with the marijuana in Kentucky scared her.

“The daily thought of, if it get pulled over and they decide to arrest, I might not see my mom for 24 hours,” Stalker said. “And as fast as she was deteriorating, I needed to be there for her. Something this little can really deprive me of the last times I’ll have with my mother. That hit me over and over.”

That fear is what ultimately pushed Stalker to reach out to civil rights attorney Dan Canon to initiate the lawsuit.

Canon says these arguments have never been made successfully in other states, but Stalker and the other plaintiffs are hoping Kentucky will be different.

“Is there a state where litigation has been successful? There isn’t one,” Canon said. “There isn’t any such thing.”

Even in the best-case scenario for Stalker, there are two possible outcomes. If a judge rules in her favor, it could mean people in Kentucky who use marijuana for medical reasons can’t be prosecuted. Or, it could just protect Stalker and her co-plaintiffs.

“It’s not a perfect solution, but those kinds of solutions can only be provided by the legislature, and they’re not doing it.” Canon said.

Almost 80 percent of Kentucky voters support allowing people to use marijuana for medical purposes if a doctor recommends it, according to a 2012 Kentucky Health Issues Poll.

Bills that would legalize marijuana for medical purposes have been introduced in the Kentucky General Assembly in the past, but the legislation has failed to gain traction. State Sen. Perry Clark, a Democrat of Louisville, said legislators don’t want to vote on something that could be used against them in a campaign.

“There’s still a lot of rural legislators that are dealing with church bodies,” Clark said. “They’re frightened to act on it. I knew when I introduced the bill that it wasn’t going to get done immediately, but somebody needed to take the heat and get it out in Kentucky.”

The Kentucky Medical Association has also opposed legalizing medical marijuana. The Federal Drug Administration classifies it as a drug, which would mean it would have to be legalized at the national level.

Dan Seum Jr., another plaintiff from Louisville, said it was a long process to find other people to join the lawsuit for fear of backlash.

“There’d be a whole lot more on this lawsuit, but they’re scared,” he said. “They don’t want to lose their children, they don’t want to go to jail, they don’t want to lose their jobs. And that, to me, is so wrong.”

Seum’s father, Republican state Sen. Dan Seum of Louisville, voted in favor of a bill in 2014 allowing the state to study a form of medical marijuana.

A Different World

When she lived in Colorado, Stalker was prescribed medical marijuana for her bipolar disorder and irritable bowel syndrome. After years on prescription drugs, she said, medical marijuana actually worked without the side effects.

And she said once her mother saw that the drug soothed her stomach and cleared her head when she started to feel manic episodes coming on, they were able to finally talk about it openly. She didn’t have to hide it anymore because in Colorado, what she was doing was legal. And her mom was happy something was finally making her daughter better.

So when Stalker returned home to Kentucky in 2015 after her mother was diagnosed with cervical cancer, she had hoped marijuana would help ease her mother’s extreme nausea and pain. But family members feared legal trouble.

“Here I was watching this woman who couldn’t have a gummy bear to ease her pain, and in a state away, that’s a completely legal course of treatment,” Stalker said.

Meanwhile, Stalker said she had to buy marijuana illegally here to manage her own health.

“Coming back it was a complete switch in my health care and that was only dictated by the state,” Stalker said. “My doctor told me if that’s what had been working, to move back to Colorado.”

Stalker puts herself at risk each time she gets into a car with marijuana and even sometimes at the doctor, when she lists her marijuana use on her medical record. In some scenarios, her medical providers would have to report her use.

Even if the lawsuit isn’t successful, Stalker said she hopes it will raise awareness and push the state legislature to make a move. Legalizing medical marijuana, Stalker said, really could have helped her mother’s quality of life as she lay dying from cervical cancer.

“I saw at the end that anybody in that situation — really holding onto that last bit of, ‘am I going to live’ — that if they want to try something, they should be able to,” Stalker said. “And that was taken from her, taken from me, she was taken from me.”

Read the lawsuit here.

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NEF Stamped Complaint (PDF)

NEF Stamped Complaint (Text)

Lisa Gillespie is WFPL's Health and Innovation Reporter.