Court decision changes atmosphere on medical marijuana use

The decision of the U.S. Supreme Court last fall to let stand an appeals court ruling that the federal government may not investigate, threaten, or punish doctors who recommend marijuana as a medical treatment for their patients has lifted a cloud that was over the heads of many people, says Bruce Mirken, communications director for the Marijuana Policy Project (MPP) in Washington, DC.

"We hear from a lot of doctors who are supportive [of medical use of marijuana] but have been afraid to make such a recommendation to their patients," he tells State Health Watch. "In the Supreme Court action, we see that cloud lifting, and that makes everything easier."

With the high court’s decision not to hear the case, doctors in California and six other western states in which voters or legislators have approved marijuana for medical uses such as pain relief may now discuss it with their patients without fear of jeopardizing their federal licenses to prescribe drugs. In addition to California, the other states within the Ninth Circuit Court of Appeals that authorize use of medical marijuana are Alaska, Arizona, Hawaii, Nevada, Oregon, and Washington. In addition, Maine, Colorado, and Maryland have some type of law authorizing medical use of marijuana.

MPP says that no one has ever died from an overdose of marijuana, making it "one of the safest therapeutically active substances known." It reportedly has several therapeutic applications, including relief from nausea and increase of appetite, reduction of intraocular pressure, reduction of muscle spasms, and relief from chronic pain. It has been prescribed for patients with AIDS, glaucoma, cancer, multiple sclerosis, epilepsy, and chronic pain.

"Each of these applications has been deemed legitimate by at least one court, legislature, and/or government agency in the U.S.," MPP says. "Many patients also report that marijuana is useful for treating arthritis, migraine, menstrual cramps, alcohol and opiate addiction, and depression and other debilitating mood disorders."

Before 1937, at least 27 medicines containing marijuana were legally available in the United States, often from major drug companies, according to MPP. The Marijuana Tax Act of 1937 federally prohibited marijuana. The Controlled Substances Act of 1970 placed marijuana on Schedule I, which meant it has a high potential for abuse, no currently accepted medicinal use in treatment in this country, and a lack of accepted safety for use under medical supervision.

MPP says there is significant public support for ending the ban on medical use of marijuana. It says that a 1990 survey of oncologists found that 54% of those with an opinion favored the controlled medical availability of marijuana and 44% already had broken the law by suggesting at least once that a patient obtain marijuana illegally. A Pew Research poll conducted in February 2001 found that 73% of American adults supported permitting doctors to prescribe marijuana for their patients.

MPP says the federal government has no legal authority to prevent states from changing their laws to remove state-level criminal penalties for medical marijuana use. But most state governments that want to allow marijuana to be sold in pharmacies have been held back by the federal government’s overriding prohibition.

Currently, 30 states and the District of Columbia have laws on the books that recognize marijuana’s medical value. However, 12 states with "therapeutic research program" laws are unable to give patients legal access to medical marijuana because of the federal government’s position. Ten states and the District of Columbia have what MPP refers to as "symbolic laws" that recognize marijuana’s medical value but fail to provide patients with protection from arrest. And since 1996, eight states have enacted laws that effectively allow patients to use medical marijuana despite federal law.

Effective laws were adopted through ballot initiatives in Alaska, California, Colorado, Maine, Nevada, Oregon, and Washington; in Hawaii an effective law was passed by the legislature.

In Maryland, Mr. Mirken says, the legislature passed a compromise measure that was signed by the state’s Republican governor despite pressure from the White House to reject it. That bill does not make medical use of marijuana legal, but says that if a patient has a medical prescription for marijuana, that can be used as a defense in court and the patient would be subject to a maximum penalty of a $100 fine rather than jail time. While the provisions are not what MPP would have liked to see, according to Mr. Mirken, the fact that the bill was signed by a Republican governor in defiance of the Bush administration makes it politically significant.

Each of the other states allows patients to grow, possess, and use medical marijuana if approved by a medical doctor. Patients also may be assisted by a caregiver, who is authorized to help the patient grow, acquire, or consume medical marijuana. Physicians are immune from liability for discussing or recommending medical marijuana in accordance with the law.

To qualify for protection under the law, patients must have documentation verifying that they have been diagnosed with a specified serious illness.

Most states require a statement of approval signed by the patient’s physician, while some permit a patient’s pertinent medical records to serve as valid documentation.

Patients’ marijuana possession and cultivation limits generally are restricted to a concrete number, such as 1-3 ounces of usable marijuana and six to seven plants, three of which may be mature. Wash-ington and California have conceptual limits, permitting respectively a 60-day supply or enough for the personal medical purposes of the patient.

MPP says it is important to realize that the federal government can’t simply nullify state laws on the subject. Even though patients can be punished for violating federal marijuana laws, a state government is not required to have identical laws, and thus states may allow their residents to possess, grow, or distribute marijuana for medical purposes.

"This division of power is extremely advantageous to patients who need to use marijuana," MPP says. "Because 99% of all marijuana arrests in the nation are made by state and local — not federal — officials, favorable state laws can effectively protect 99 out of 100 medical marijuana users who otherwise would have been prosecuted. Federal drug agents simply do not have the resources or the mandate to patrol the streets of any state looking for cancer patients growing a few marijuana plants."

One drawback, according to MPP, is that distributors are on the federal radar screen. Pharmacies don’t sell marijuana anywhere in this country; and some medical marijuana distribution centers, often known as cannabis buyers’ clubs, have been hampered by federal law.

The two cases dealing with medical marijuana policy that have made it to federal court so far have not challenged the legitimacy of the state medical marijuana laws in states that have them.

According to the RAND Drug Policy Research Center in Santa Monica, CA, an analysis by researcher Rosalie Pacula and colleagues shows that three main policy dimensions influence the ultimate scope of state laws: type of provision, illness and symptoms covered, and source of marijuana supply.

Ms. Pacula identifies four types of provision in state law (see table, below) — therapeutic research program, rescheduling, physician prescription, and medical necessity, with therapeutic research programs providing the narrowest protection and physician prescription and medical necessity the broadest.

RAND found 27 jurisdictions (26 states plus the District of Columbia) with laws enabling medical use of marijuana as of Dec. 31, 2000; 14 had authorized therapeutic research programs, but only six were operational. Thirteen states had physician prescription laws, and nine states had medical necessity laws. All nine with medical necessity provisions also had physician prescription provisions.

Ms. Pacula says that looking across the three dimensions of medical marijuana policy reveals nuances in state laws. For example, she writes, one can identify states taking the broadest, most liberal approach and those that appear to be taking broad approaches but are actually more conservative and cautious.

"Policy-makers and advocates should be aware of two major hurdles," she says. "First, federal courts have not accepted the medical necessity exception when patients have been tried in federal courts, but cases invoking this defense have been highly specific; thus, federal court rulings have not invalidated the defense per se. Second, states need to create a legitimate supply mechanism for patients that does not create a bigger burden for law enforcement. Nine of the 27 states do not explicitly identify a licit source of marijuana for patients; four simply state that patients should obtain marijuana by any means appropriate,’ implicitly encouraging patients to obtain marijuana through illegal channels, and five are completely silent on the issue, forcing law enforcement to pursue both legitimate and illegitimate users until legitimate ones can be identified and legitimizing the black market supply of marijuana."

Mr. Mirken tells State Health Watch there have been some changes in implementation practices that will be reflected in MPP’s next state survey. For instance, Maine has increased the amount of marijuana that an individual may possess. He points out that the change went through with almost no opposition and may be a sign that once legislation is in effect, its implementation doesn’t generate much controversy.

Mr. Mirken says MPP is hopeful that one or more additional state ballot initiatives will be approved by voters in the November election, and adds there are some states where the legislature may be willing to move forward. "We’re cautiously optimistic about New York, Connecticut, and Illinois.

Seeing a potential opportunity in Vermont, as well, MPP has been running TV ads there featuring a woman whose husband died of cancer and who used marijuana in his final months to ease his pain and nausea.

[For more information, go to: www.mpp.org and www.rand.org. Contact Mr. Mirken at (415) 668-6403. E-mail: Bruce.Mirken@mpp.org.]