OMAHA, Neb. — For Matt and Nicole Hochstein, this week’s Nebraska Supreme Court decision blocking medical marijuana from the November ballot could mean life or death for their young son.
The Hochsteins live in the Omaha suburb of Papillion, Nebraska. They both grew up in Cedar County, Nebraska — Nicole from Wynot and Matt from Hartington — just southeast of Yankton.
The Hochsteins had seen medical marijuana as a way of controlling the epileptic seizures of their 10-year-old son, Jayen. They had unsuccessfully tried a number of medications in the past, and they were searching for anything that would keep their son from needing brain surgery.
The Hochsteins believed the proposed Nebraska constitutional amendment for medical marijuana would make the state ballot. The couple had already made plans for their son’s use of a cannabis product if Nebraska voters approved the proposed measure.
Nicole was stunned at Thursday’s high court ruling, which came just ahead of the Sept. 11 deadline for certifying ballot measures. She expressed a wide range of emotions, from anger to sobbing, during a Press & Dakotan interview shortly after the court ruling.
“We had everything set up if this had passed. Jayen would just need medication or oil,” Nicole said. “Now, our only other option is brain surgery. They’re going to cut open our son for brain surgery when we had other options. This is just so hard (to hear the court decision).”
Jayen already faces medical challenges in dealing with multiple seizures on a daily basis, Nicole said.
“He’s at risk for epilepticus, which is a non-stop seizure where you have to put him in a medically-induced coma,” the mother said. “His brain is affected by every seizure. This literally could bring the death of him. We don’t know when he will have his last seizure.”
THE COURT SPEAKS
In order to legalize medical marijuana in the Husker State, supporters had proposed the “Nebraska Medical Cannabis Constitutional Amendment” (NMCCA) be presented to voters on the November ballot. The measure would have allowed persons with serious medical conditions to produce and medicinally use cannabis, subject to a recommendation by a licensed physician or nurse practitioner.
Nicole had worked extensively with the statewide petition drive that collected nearly 200,000 signatures. The proposed amendment had surpassed the required number of petition signatures, and Nebraska Secretary of State Bob Evnen had certified the measure for the ballot.
However, Lancaster County Sheriff Terry Wagner filed a legal challenge against the proposed measure. His attorney described what he considered the uncertainty of the amendment and said it could allow the manufacture, sale and distribution of marijuana beyond medical purposes.
Supporters said the measure sought to protect those who used the drug for medical reasons from being prosecuted under anti-drug trafficking laws.
By a 5-2 margin, the Nebraska Supreme Court ruled the proposed amendment continued at least eight subjects and violated the state’s “one subject” rule. By containing secondary purposes not naturally and necessarily related to the primary purposes, it constitutes “logrolling” which is illegal under Nebraska law, the court added.
“If voters are to intelligently adopt a state policy with regard to medicinal cannabis use, they must first be allowed to decide that issue alone, unencumbered by other subjects,” the court said in its opinion.
Nebraska Gov. Pete Ricketts has strongly opposed the ballot initiative. He spoke about it with the Press & Dakotan last week following a bridge dedication ceremony in Niobrara, Nebraska.
“This is not medical marijuana. There is not such a thing,” he said. “It’s not going to be prescribed, and a doctor will not distribute it through a pharmacy. It will be done through dispensaries in your hometown. Look at the data. Only 5% of the people using this in other states have severe medical reasons for it.”
Ricketts described the drugs as “dangerous” and the cause of workplace accidents. In one media report, the governor described places where marijuana has been legalized and people “show up to work stoned.”
Also, Ricketts expressed concerns about the impact legalized marijuana would exert on young people and their development.
In response, Nicole Hochstein spoke with anger and frustration toward those who have worked to block medical marijuana in Nebraska. On the other hand, she noted the support shown by State Sens. Anna Wishart and Adam Morfeld.
Hochstein pointed out cannabis products are already on the market, with Nebraska medical providers able to recommend it for out-of-state patients.
Currently, 33 states have approved some form of medical cannabis law, and South Dakota has the measure on its November ballot, she added.
On the other hand, Hochstein spoke of her appreciation for the 198,000 Nebraskans who signed the petition and worked to get it on the ballot.
“I’m disappointed that the right of the people — the constitutional right of the people to petition their government — has not been upheld,” she said. “I’m disappointed that politicians can get in the way of the voice of the people. Almost 200,000 Nebraskans signed the petitions to get this on the ballot, and now almost 200,000 Nebraskans have lost their right to use their voice.”
Hochstein questioned the Nebraska Supreme Court’s opinion that the proposed amendment contained multiple subjects. The different sections clarified certain aspects to lessen confusion for voters, she said.
In addition, she noted Evnen had approved the wording before the petitions were circulated and certified the measure for the ballot when they signatures were submitted for approval.
Hochstein pointed to the opposite reversals of the Nebraska Supreme Court taking medical marijuana off the ballot while reinstating gaming measures — which Evnen had rejected — on the ballot.
In a statement following the court decision, Wishart said Nebraskans have tirelessly worked for more than six years with carefully crafted bills to legalize medical marijuana and haven’t given up despite the resistance.
“Please do not despair,” she said. “I will be back next year with legislation to legalize medical marijuana. We now need to focus our energy on changing the hearts and minds of Senators.”
LOOKING TO THE FUTURE
As for the Hochsteins’ future, Nicole said the family had recently moved from Arizona back to Nebraska in order to return to their roots and be near family during their struggle. While the recent court ruling was devastating for them, the family has no plans to leave the state.
During the petition circulation process, Nicole said she saw the very best in Nebraskans wherever she went.
“We got 198,000 signatures during a pandemic. We couldn’t go the places that normally had large crowds — like fairs, tournaments and concerts — where you could get a lot of signatures at once,” she said. “We still had people wearing a mask and risking their own health because they felt so strongly about signing the petitions.”
While the future appears filled with challenges, Hochstein said her family will continue working for medical marijuana, both in the Legislature and with ballot measures.”
“We aren’t done fighting. We will make sure the voices are heard for so many Nebraskans,” she said. “As for Jayen, I’ve been fighting for my son even before he was born. I will continue to be his voice.”
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