(dissenting).
I respectfully dissent.
Bonjour is a man in his sixties living with AIDS. Bonjour’s doctor told the district court he must take a cocktail of toxic drugs to prolong his life. His doctor also told the district court this cocktail of toxic drugs has serious side effects, which include nausea, vomiting, poor appetite, diarrhea, and neuropathy. These side effects have not allowed Bonjour to stay on the strict regimen of his AIDS’ drugs, which is critical for these drugs to work. Bonjour’s doctor attempted to relieve the side effects of the drugs by other medication, including Marinol, a synthetic form of marijuana, used to control nausea and vomiting. These medications were ineffective in controlling these side effects, so Bonjour started to use marijuana in his cooking to alleviate the side effects. The marijuana controlled the side effects more effectively than the Marinol and allowed Bonjour to maintain his strict regimen of drugs. Bonjour’s health has improved with his use of marijuana.
The State chose to charge Bonjour with possession of marijuana. The only issue before this court is whether under these facts the common-law medical necessity defense is available to a defendant charged with possession of marijuana.
I agree with the majority the common-law defense of necessity is only available to Bonjour if “the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.” Commonwealth v. Hutchins, 410 Mass. 726, 575 N.E.2d 741, 744 (1991). I disagree, however, with the majority’s conclusion that the legislature’s enactment of Iowa’s Controlled Substances Act1 foreclosed the recognition of the common-law necessity defense when it involves the medical use of marijuana.
In 1971, the legislature repealed the Uniform Narcotic Drug Act and enacted the Uniform Controlled Substances Act. Unif. Controlled Substances Act, prefatory note, 9 U.L.A. 10 (1994). While Iowa’s enactment of the Uniform Controlled Substances Act is a substantial adoption of the major provisions of the uniform act, Iowa’s act contains some provisions not contained in the uniform act. Id. One such provision at variance with the uniform act occurred by amendment in 1979.
Iowa’s act, as originally enacted, classified marijuana as a Schedule I controlled substance without exception. Iowa Code § 204.204(4)0) (1973). A Schedule I substance “has no accepted medical use in treatment in the United States; or lacks accepted safety for use in treatment under medical supervision.” Id. § 204.203(2). The original enactment was consistent with the uniform act. In 1979, the legislature amended Iowa’s act classifying marijuana as a Schedule I substance “except as otherwise provided by the rules of the board of pharmacy examiners for medical purposes.” Id. § 204.204(4)0') (1981). In the same amendment, the legislature added a new provision to the list of Schedule I substances providing, “[t]his section does not apply to marijuana ... when utilized for medical purposes pursuant to rules of *516the state board of pharmacy examiners.” Id. § 204.204(6).
In the session laws adopting the 1979 amendments, the legislature also provided funding for the board of pharmacy examiners to establish “a research program for the medicinal use of marijuana.” 1979 Iowa Acts ch. 9, § 3. In 1979, the board of pharmacy examiners adopted rules establishing a research program investigating the medical use of marijuana. Iowa Admin. Code r. 620 — 12.1 (1979). The rules clearly recognized the legislature did not preclude the medical use of marijuana in Iowa’s Controlled Substances Act by stating: “Nothing in these rules will preclude the use of any available dosage forms of marijuana or tetrahydrocannabinols.” Id. The rules defined “marijuana” as the legislature defined it in Iowa’s Controlled Substances Act. Id. r. 620 — 12.2(3).
In 1987, the board of pharmacy examiners rescinded its rules establishing a research program into the medical use of marijuana because the legislature amended Iowa’s Controlled Substances Act classifying marijuana as a Schedule II substance.2 Feb. 25, 1987 Iowa Admin. Bull, at 1444 (ARC 7383). The provision amending the Code classifying marijuana as a Schedule II substance provided in relevant part: “[mjarijuana is deemed to be a Schedule II substance when used for medicinal purposes pursuant to rules of the board of pharmacy examiners.” Iowa Code § 204.206(7) (1987). A Schedule II substance “has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions.” Id. § 204.205(2). Millions of people use Schedule II substances each day to relieve their symptoms. Other Schedule II substances include pain medications with codeine (Tylenol with codeine), oxycodone-based pain medications (Percocet), fentynal-based pain medications (Duragesic), and amphetamines (Adderall and Dexedrine).
In 1990, the legislature amended this section of the Code one more time. The legislature continued to classify marijuana as a Schedule II substance, when used for medical purposes pursuant to rules of the board of pharmacy examiners. Id. § 204.206(7) (1991). It provided:
Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances [is a Schedule II substance]:
a. Marijuana when used for medicinal purposes pursuant to rules of the board of pharmacy examiners.
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c. Nabilone.3
Id. The 1990 amendment continues to be the law today. See Iowa Code § 124.206(7) (2003).
This legislative history and the classification of marijuana as a Schedule II substance indicate the legislature has not precluded the use of the common-law necessity defense by a clear and deliberate choice regarding the values surrounding the medical use of marijuana. The legislature has accepted the fact that marijuana does have legitimate medical uses. This acceptance leaves the issue open as to whether the common-law medical necessity defense is available to a defendant charged with possession of marijuana. If the legislature wanted to preclude the *517common-law necessity defense by a clear and deliberate choice regarding the values surrounding the medical use of marijuana, it would have repealed the sections of the Code recognizing that marijuana has legitimate medical uses.
The majority believes the legislature’s inclusion of the language, “pursuant to rules of the board of pharmacy examiners,” indicates a clear and deliberate choice by the legislature to preclude the common-law defense until the board acts. I disagree. At best, the legislature’s inclusion of this language indicates an ambiguous choice by the legislature regarding the values surrounding the medical use of marijuana.
Once it is determined that the legislature has not precluded the common-law necessity defense to a charge of unlawful possession of marijuana, no one can dispute that the common-law necessity defense exists in Iowa. State v. Reese, 272 N.W.2d 863, 866 (Iowa 1978). This court first recognized the common-law defense in 1915. State v. Ward, 170 Iowa 185, 191, 152 N.W. 501, 503 (1915). In Ward, the State charged the defendant with unlawfully killing a deer. 170 Iowa at 187, 152 N.W. at 501-02. The defendant contended he killed the deer because several deer had regularly destroyed his crops. Id. at 188, 152 N.W. at 502. The statute under which the defendant was charged made no exception to the killing of a deer in defense of one’s property. Id. at 189-90, 152 N.W. at 502. The statute only allowed the state game warden or his deputies to kill or capture any deer running at large “when it became necessary in the opinion of the state game warden or his deputies.” Id. at 190, 152 N.W. at 502. In allowing the defendant to use and eventually prevail on the common-law necessity defense, this court stated:
[T]he right of defense of person and property is a constitutional right (article I, § 1, const. Iowa), and is recognized in the construction of all statutes. If in this case it was reasonably necessary for the defendant to kill the deer in question in order to prevent substantial injury to his property, such fact, we have no doubt would afford justification for the killing.
Id. at 189, 152 N.W. at 502 (emphasis added). Article I, section 1 of the Iowa Constitution provides:
All men and women are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.
Iowa Const, art. I, § 1.
If this court recognizes article I, section l’s inalienable rights in the context of the necessity defense, the right of a person to defend his or her life and pursue and obtain safety and happiness is just as important, if not more important, than the right to defend one’s crops from hungry deer. If we are willing to allow a farmer to realize the full value of his crops by allowing him to kill a foraging deer, when the law authorized only a game warden or his deputy to kill that deer, we should allow an individual to seek relief from the agonizing symptoms caused by an incurable disease that will eventually lead to death, even though the board of pharmacy examiners has not enacted rules regarding the medical use of marijuana.
The failure of the board of pharmacy examiners to act is not an excuse for this court to refuse to recognize the defense when the legislature clearly recognizes there are legitimate medical uses for marijuana. We do not have to wait for the legislature or the board to negotiate the *518political minefield regarding the medical use of marijuana. As long as the legislature has not precluded the defense by a clear and deliberate choice, this court has an obligation to allow a defendant to use a necessity defense if the facts support such a defense. Otherwise, this court could always cite to a legislature’s ambiguous pronouncement on a subject as grounds for rejecting the defense.
For these reasons, I would recognize the common-law necessity defense when a defendant uses marijuana for medical purposes. See Jenks v. State, 582 So.2d 676, 679 (Fla.Dist.Ct.App.1991) (holding statute listing marijuana as a Schedule I substance does not preclude the defense of medical necessity for a defendant who allegedly used marijuana to treat nausea in connection with his AIDS’ treatment); State v. Bachman, 61 Haw. 71, 595 P.2d 287, 288 (Haw.1979) (holding a medical necessity defense could be asserted to a marijuana possession charge with competent medical testimony); State v. Hastings, 118 Idaho 854, 801 P.2d 568, 565 (Idaho 1990) (holding defendant who was charged with possession of marijuana was entitled to present evidence relating to the common-law defense of necessity in connection with her claim that she suffered from rheumatoid arthritis and used marijuana to control pain and muscle spasms). In order for a defendant to use the defense, I would require the defendant to show by competent medical evidence that (1) the defendant is faced with a serious and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that the use of marijuana for medical purposes will be effective to abate the danger; and (3) there are no legal conventional medical alternatives which will be effective in abating the danger. I would limit the defense to possession charges.
Bonjour presented competent medical evidence from a board-certified physician that the use of marijuana to treat Bonj-our’s symptoms is effective, safe, and without significant side effects. Under the record made at the motion in limine hearing, Bonjour satisfied the elements necessary to put the defense of medical necessity at issue. Therefore, I believe Bonjour should be entitled to use this defense to the charge of unlawful possession of marijuana.
LAVORATO, C.J., joins this dissent.. Iowa’s Controlled Substances Act is found in Iowa Code chapter 124.
. By statute, the board of pharmacy examiners has the duty to recommend revisions to the schedules of controlled substances. Iowa Code §§ 204.201(1); 204.205 (1987).
. Nabilone is a synthetic derivative of the chemicals found in marijuana.