By James R. Jolin
To navigate the myriad interests and stakes involved in creating federal psychedelic policy, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School convened a virtual panel discussion with three leading psychedelic policy advocates.
The conversation was situated against the backdrop of the “psychedelics renaissance” in the United States, which has been fueled by a wave of local and state legislation reducing or eliminating the criminal penalties associated with these substances.
Though many localities have made significant strides in addressing the legal questions surrounding psychedelic substances such as psilocybin and dimethyltryptamine (DMT), federal policymakers have not pursued similar initiatives.
Suggestions and considerations for federal psychedelic policy thus formed the substance of the discussion among the panelists:
- Ismail Lourido Ali, Director and Counsel, Policy & Advocacy, Multidisciplinary Association for Psychedelic Studies
- Ariel Clark, Partner, Clark Howell LLP; Founding Board Member, Psychedelic Bar Association; General Legal Counsel and Board Member, Chacruna Institute for Psychedelic Plant Medicines
- Micah Haskell-Hoehl, Founder, Healing Equity and Liberation (HEAL)
Asked what the most pressing issues are in setting a national psychedelic policy agenda, Clark said that, while she desires expanded research into and access to psychedelic substances such as MDMA, she worries about their potential “pharmaceuticalization.”
“I once heard someone say that, in a couple of years, we may turn on the TV and have commercials that say things like, ‘Ask your doctor if MDMA is right for you.’ I’m concerned about that,” she said.
For Haskell-Hoehl, federal psychedelic policy is high stakes and requires bold action. “There’s no low-hanging fruit when it comes to federal psychedelic policy,” he added.
Even though he said he views increased funding for psychedelic research by the National Institutes of Health as “exciting,” in the long term, Haskell-Hoehl favors federal policy modeled after state legalization statutes, such as Oregon’s. On the side of the executive branch, he added he would like to see the Department of Justice commit to not prosecuting psychedelic-related offenses.
“A sort of lofty, longer-term, ideal goal would be federal decriminalization across the board of all drugs and the people who use them, and an attendant accounting for and repair of drug war harms and colonization,” he said.
Ali noted that because state psychedelic policy has emerged only recently, it’s unclear exactly what makes effective psychedelic policy. In his view, to obtain better data on “what works and what doesn’t work,” the Department of Justice must promulgate guidance to allow for greater state experimentation in psychedelic policies.
But, as for congressional action, Ali argued for an update to the 1993 Religious Freedom Restoration Act (RFRA), which the Supreme Court invalidated in its seminal 1997 City of Boerne v. Flores decision.
“We’re now in an environment where the spiritual and sacramental use of certain substances has expanded, and it’s become more popular, and people have become more aware of it. And I think that the law [RFRA] hasn’t necessarily caught up,” Ali said.
When asked about religious psychedelic use and the role of the Drug Enforcement Administration and Food and Drug Administration, Ali said regulation in religious contexts can be challenging. On the one hand, he noted the government’s “reasonable” desire to ensure substances and substance use are safe; but on the other hand, Ali acknowledged that regulation of substance use in sacramental contexts could become a “slippery slope” of undue government adjudication of private religious activity.
Pointing to the Controlled Substances Act, Haskell-Hoehl also noted that, even when divorced from religious activity, federal regulation of drugs may be calamitous — especially on Black people and other people of color.
“The Controlled Substances Act and the War on Drugs, which now is 50 years old as of last June, have justified an absolute reign of terror on Americans and particularly communities of color, and it’s beyond time to move past this,” he said.
Looking toward the immediate future, Haskell-Hoehl and Clark emphasized the value of community engagement, especially with those who have borne the brunt of the War on Drugs, to realize psychedelic policy that not only prevents, but also addresses, past trauma. Clark added such engagement also has an educational value for citizens, activists, and elected officials. “Deep listening, deep engagement” will help us understand “old ways that we really need to lay aside,” she said.
This event was sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and is part of the Center’s Project on Psychedelics Law and Regulation (POPLAR). A full video of the event is available below.