The right to health and access to medicinal cannabis in Portugal: an unfulfilled constitutional promise

On 31 May 2025, the Cannabis March took place in Lisbon, where people from various regions of the country gathered to demand the legalisation of cannabis, defending the right to grow up to four plants per person at home. This civic movement once again put an essential issue on the public agenda: fair and equitable access to cannabis for medicinal purposes.

In Portugal, the right to health is enshrined in the Constitution of the Portuguese Republic in article 64, guaranteeing all citizens protection and equal access to health care. However, this fundamental right clashes with the concrete reality of many Portuguese people when it comes to access to medicinal cannabis.

Although cannabis for medicinal purposes has been legal since 2018, its acquisition is limited to products authorized by Infarmed, exclusively available in pharmacies and at high prices. These products are not subsidized by the State, making them inaccessible to many patients, especially those on low incomes. Herein lies the paradox: there is a recognized right and a legal therapeutic substance, but real access to it is, for many, a mirage.

Faced with this economic exclusion, some patients resort to self-cultivation of cannabis as a last resort to alleviate pain or treat chronic conditions. However, even in these cases, Portuguese law considers cultivation a crime, punishable under Decree-Law 15/93. The courts have systematically rejected arguments based on the right to health or the right to resistance (art. 21 of the Portuguese Constitution), based on the existence of legal access routes — even though these are economically unviable and very limited in terms of options for certain pathologies.

The question that arises is this: what value does a fundamental right have if it is not guaranteed to everyone, regardless of their economic status? When access to healthcare is conditioned by the ability to pay, we are faced with a constitutional fallacy.

What is required is not the indiscriminate liberalization of cultivation, but rather a State that ensures the effectiveness of the rights it proclaims.

If medicinal cannabis is recognised as a treatment, then equal access must be guaranteed, through co-payment by the NHS or mechanisms that protect the most vulnerable.

In a democracy worthy of the name, fundamental rights cannot be class privileges. The right to health, enshrined in our Constitution, must be experienced as a concrete reality and not just a formal promise.

Otherwise, the Constitution becomes a dead letter and the poorest continue to pay the price of legal hypocrisy.

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Leonardo Sousa

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