Article: UC Berkeley Center for the Science of Psychedelics – Psychedelics and the Law

In 1970, President Richard Nixon signed the Controlled Substances Act (CSA), prohibiting many psychedelics in the United States. (Several states had already prohibited LSD and other psychedelics starting in 1966.) The CSA divides drugs into schedules according to their assessed risk, categorizing the most dangerous, addictive, and harmful substances that are deemed to not have any recognized medicinal use as “Schedule I.” This includes a range of substances, including LSD, psilocybin, cannabis, and heroin. The legislation significantly inhibited research into the potential therapeutic uses of psychedelics for decades.

Some exceptions have been made to allow the use of certain psychedelics in religious ceremonies, and some states and municipalities have deprioritized enforcement of laws prohibiting possession of plant and fungi-derived substances (see below). But these substances remain illegal under federal law.

In recent years, as more clinical trial results show that psychedelics can be used in conjunction with therapy to treat illnesses like depression and post-traumatic stress disorder, legislators pushed to make certain substances available in certain settings. That support is no longer confined to more politically progressive states and municipalities like Oregon, Oakland, and Denver. Rick Perry, the Republican former governor of Texas, has advocated to make psilocybin-assisted therapy available for veterans with PTSD, as have other lawmakers in states including Utah and Oklahoma.

Where Laws Are Changing

As more and more scientific research supports the therapeutic and medicinal potential of psychedelics, states and cities have begun to make these substances more accessible. Several municipalities have already deprioritized the enforcement of their local laws against psilocybin mushrooms or against all “entheogenic plants and fungi.”

At the state level, Oregon has decriminalized possession of small amounts of almost all drugs and is also starting to implement Measure 109, approved in 2020, which will allow for supervised administration of psilocybin at licensed service centers. There are efforts in other states to enact similar measures by voter initiative or through the legislatures.

However, most common psychedelics, including psilocybin, remain illegal federally, so the impact of new state laws will depend upon the federal government declining to prosecute cases involving these substances.

Psychedelics and the United States Food and Drug Administration

The United States Food and Drug Administration has acknowledged the unique potential of some psychedelic-assisted therapies by granting breakthrough therapy designation, or BTD, which gives especially promising drug-development programs access to FDA consultations in order to expedite possible drug approval. In 2017, the FDA granted the Multidisciplinary Association for Psychedelic Studies, a non-profit research and educational organization, BTD to develop MDMA-assisted psychotherapy to treat post-traumatic stress disorder. In 2018, the FDA granted COMPASS Pathways BTD to develop psilocybin therapy for treatment-resistant depression. And in 2019, Usona Institute was granted BTD to develop a psilocybin program to treat major depressive disorder.

Even with BTD, the path to FDA approval of a psychedelic medicine is still arduous and expensive. Ketamine, a Schedule III substance (defined by the Controlled Substances Act as having a moderate to low potential for physical and psychological dependence), is legal in the United States when used for approved medical purposes as an anesthetic. Doctors are also able to prescribe it as an “off-label” treatment for depression; some of the first ketamine clinics offering treatment for depression opened in 2012. In 2019, the FDA approved Spravato, the Janssen Pharmaceuticals esketamine formulation, as part of a therapy protocol for treatment-resistant depression; the following year, it was approved for treatment of major depression with suicidal thoughts. However, Spravato, which is under patent, can cost hundreds of times as much as generic ketamine.

Religious Liberty

The Native American Church has long fought for the legal right to use peyote in religious ceremonies. Between 1916 and 1918, three anti-peyote laws were introduced in Congress. Indigenous leaders, including Comanche Chief Quanah Parker, successfully fought the bills, arguing that they violated the constitutional right to freedom of religion and that peyote is a healing medicine that could help treat alcoholism in Indigenous communities. The Native American Church incorporated in Oklahoma in 1918, hoping that, as a formalized religion, their right to use peyote would then be further protected under the First Amendment. But the fight did not end there. By 1937, most states west of the Mississippi had laws restricting the use, sale, and possession of peyote.

In 1978, Congress established the American Indian Religious Freedom Act to enshrine protections for Indigenous religious practices. But some state legislatures failed to amend laws prohibiting peyote possession. In 1984, two Indigenous drug counselors working for a nonprofit partnered with the state of Oregon took peyote as part of a Native American religious ceremony. They were fired from their jobs for misconduct and denied unemployment benefits. The case, Employment Division, Department of Human Resources of Oregon v. Smith, ultimately made it to the Oregon Supreme Court, which ruled that the Oregon law prohibiting peyote use violated the Free Exercise Clause of the First Amendment, which gives people the right to practice their religion as long as it doesn’t conflict with “public morals” or a “compelling” governmental need.

On appeal, in 1990, the U.S. Supreme Court reversed the lower court’s ruling. It did so not on narrow, case-specific grounds, but rather by weakening the standing judicial interpretation of the Free Exercise Clause. As the attorneys for the Church commented, the decision, in effect, “rewrote the First Amendment to read, ‘Congress shall make no laws except criminal laws that prohibit the free exercise of religion.’” In other words, laws banning peyote are constitutional as long as they don’t target Native American Church use explicitly. Therefore, Native American Church members must comply with the law and refrain from using peyote, just like everyone else. Scalia went on to argue that granting a peyote exception would open up religious exemptions to all kinds of state laws, including those prohibiting manslaughter, child neglect, and animal cruelty.

The Supreme Court’s surprising ruling galvanized a broad coalition of religious organizations, which petitioned Congress to pass the Religious Freedom Restoration Act of 1993 in order to restore the pre-1990 judicial interpretation of Free Exercise. The following year, Congress made peyote protections for Indigenous people explicit by passing the American Indian Religious Freedom Act Amendments of 1994, which states that “the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful and shall not be prohibited by the United States or any State.” In 1997, the CIty of Boerne v. Flores case limited RFRA to the federal level.

Other religions have also requested religious exemption for the ceremonial use of prohibited substances. In 2006, after years in the federal courts, the União do Vegetal church, a Brazil-based syncretic tradition, won an exemption in the Supreme Court for its use of ayahuasca. One other ayahuasca church, The Church of the Holy Light of the Queen, has also been granted a religious exemption.


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