🫠 Psychonaut POV

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Kathryn Tucker has spent a good chunk of her life thinking about death. It’s not some morbid fascination; she just believes that dying people deserve to be treated fairly (go figure), so she’s dedicated her career to protecting their rights. That’s where psychedelics come in.

We spoke to Kathryn about her path into psychedelic law, how she’s challenging the DEA to reschedule psilocybin, and a conversation with Roland Griffiths that drives her work to this day.

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Where did your interest in psychedelic law come from? Why join the Psychedelic Bar Association as a founding board member?

For 35 years, my career has been in advocacy to protect and expand the rights of dying patients. That work involved a whole host of different efforts, including serving as campaign counsel to the first Death with Dignity initiative in the country, in Washington State in 1991. I worked on efforts in California and Oregon; Oregon became the first state to pass a Death with Dignity initiative in 1994.

I became fascinated in this intersection of law and medicine at end of life. I developed a pair of federal cases challenging laws that made it a crime to ‘assist suicide,’ arguing that dying patients should have a protected liberty interest to choose a more peaceful death with physician assistance. We won both cases in the federal courts of appeal in the Ninth and Second Circuits. But the Supreme Court ultimately sent the matter back to the states. From there, we passed a host of state laws empowering dying patients with this end-of-life option and also established this right in one instance through state court litigation.

My interest in psychedelic law specifically came after reading Michael Pollan's article "The Trip Treatment" in the New Yorker. It recounted modern research using psychedelics, including psilocybin, for relief of anxiety and depression in people with terminal illness. I immediately wanted to get involved in making psilocybin therapy available for dying patients because I was aware of the noticeable gap in the palliative care toolbox for non-physical suffering. Psilocybin-assisted therapy offers promise of filling that gap with an effective new tool for relief of such suffering.

I convened what I believe was the first major national conference on law, policy, and science around psychedelic-assisted therapy in the end-of-life context at the University of Washington School of Law in 2017. It catalyzed a lot of interest and relationships that became stepping stones for future work.

When Izzy Ali from MAPS invited me to join as a founding member of the Psychedelic Bar Association, I was happy to do it because I was already engaged in this work. I also joined a law firm in Oregon to help found and co-chair what I think was the first psychedelics practice group in the nation.

You’re involved in two lawsuits we’ve covered in this newsletter. The first deals with expanding access to Oregon’s psilocybin services program. Can you elaborate on the case and what you’re hoping to achieve?

We've launched a lawsuit against the Oregon Health Authority because baked into the Oregon Psilocybin Services Act is an unlawful barrier to access for dying patients and disabled people. The Act restricts services to a service center, which is an insurmountable barrier for homebound people, including those with disabilities and dying people receiving care at home.

We approached the OHA and asked how they were going to accommodate, as disability law requires, the needs of that population. The OHA said it would make no accommodation. So we were essentially forced to bring the matter to judicial review, applying state and federal disability rights laws to try to crack open reasonable accommodation for homebound people to have psilocybin services at home.

This is really important because these are the very people who could benefit most from psilocybin therapy, but they're effectively shut out of the program as it stands. We're hoping to achieve a change that would allow for home-based services for this population, making this potentially life-changing treatment accessible to those who need it most.

In other cases, you represent a Seattle doctor who’s fighting for his end-of-life patients to have access to psilocybin. Why are these cases so important? What are the stakes?

These cases, known as Agarwal v. DEA or AIMS v. DEA, are critically important because they are about creating federal safe harbor for psilocybin-assisted therapy in end-of-life care. Even with state-level protections like in Oregon, federal law still poses a barrier. People with advanced and terminal illness are under the care of licensed physicians and often receiving care through federal programs like Medicare. These doctors and programs cannot tolerate violation of federal law.

We're using right-to-try laws, which recognize that dying people don't have time to wait for the long, slow drug approval process to wend its way to completion. These laws allow access to promising investigational drugs for people with life-threatening conditions. Psilocybin meets the criteria of an eligible investigational drug under these laws.

We first approached a manufacturer, who said it would supply psilocybin with DEA permission. The DEA denied our request, so we filed the first case against them. We were forced to go through two rounds of litigation with the DEA over Right to Try, as it argued that its refusal wasn’t final. We had to go through the exercise of then eliciting what it recognized as a ‘final agency decision’ to return to court, which we did and now await a ruling. We also filed a petition to reschedule psilocybin from Schedule I to Schedule II, which would enable Dr. Agarwal to provide it to his patients.

We won that litigation, with the Ninth Circuit telling the DEA their handling of our petition was improper. But a year later, the agency has done nothing with the petition. Meanwhile, dying patients keep dying in unrelieved agony. It's an outrage.

The stakes are incredibly high. Not a single additional dying patient should have to suffer debilitating anxiety and depression, which could be relieved with psilocybin therapy. This case could forge a path for terminally ill patients across the country to be able to access this potentially life-changing treatment under the care of their physicians.

If you could argue any psychedelics-related case in front of the Supreme Court, what would it be?

The United States Supreme Court is not a venue that anyone with any sort of progressive bent wants to take a matter at this time. The Trump appointees have politicized that court in a shocking way. The era of taking a case to SCOTUS where the intention is to see an individual liberty protected—or the right of a patient protected—appears to be over.

When Roe v. Wade was overturned, it put in jeopardy all kinds of other decisions that relate to the ability of individuals to control their healthcare and medical care. That could certainly impact the end-of-life arena. So there's no case that I would be excited to see go to the United States Supreme Court at this time.

However, there's an interesting tension developing in the federal courts. With the rise of the Federalist Society and the appointment of many right-wing conservative judges, there's growing hostility to agency action. This was capped with the overturning of the Chevron decision, which was about the level of deference afforded to federal agencies.

This hostility, whatever its merit, could benefit us in our challenge to the DEA's conduct. The DEA is way out of its lane in the AIMS case. It's a law enforcement agency restricted to deterring diversion and abuse of controlled substances. It has no authority to intrude into the practice of medicine, which is what it has done in obstructing operation of right-to-try laws.

So while I wouldn't want to take a psychedelics case to the Supreme Court right now, these tensions in the lower courts could potentially work in our favor as we continue to fight for patients' rights to access psychedelic therapies.

Outside the courtroom, you’re a dedicated Ashtanga yogini. How do you weave your spiritual practice into your legal and policy work?

I remember sitting with Roland Griffiths, who was a great leader of the modern era renaissance of research with psychedelics. He also had a longstanding contemplative practice. We talked about how the elevated and expanded state of consciousness that one can achieve by ingesting psilocybin reminded us of the state catalyzed with yogic practices.

I worry that in this culture we too often suggest ingestion of  a substance, rather than modifying lifestyle, to manifest an improvement in well being.

These elevated and expanded states of consciousness are incredibly valuable, especially for people who are feeling depression, anxiety, existential dread, terror in the face of terminal illness. Our culture hasn't done a good job of empowering people with good tools, practices, or ways to think about end of life and what lies beyond.

For people who find themselves confronting mortality and who don't have enough time to build a deep yoga practice, getting relief from anxiety and depression through psilocybin may be their best way to find peace and acceptance. I'm hopeful that that will become possible sooner rather than later.

Want more from Kathryn?

This important public interest advocacy is funded by donations. Follow Kathryn on LinkedIn, contact her directly, or donate to the NPA Foundation support this important work.

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DISCLAIMER: This newsletter is for educational and informational purposes only and is not intended as a substitute for professional medical advice. The use, possession, and distribution of psychedelic drugs are illegal in most countries and may result in criminal prosecution.