Medical Marijuana Debate Forum - Medical Marijuana Briefing Paper

Medical Marijuana Briefing Paper
The Need to Change State and Federal Law

For thousands of years, marijuana has been used to treat a wide variety of ailments. Until 1937, marijuana (Cannabis sativa L. ) was legal in the United States for all purposes. Presently, federal law allows only seven (7) Americans to use marijuana as a medicine.

On March 17, 1999, the National Academy of Sciences' Institute of Medicine (IOM) concluded that "there are some limited circumstances in which we recommend smoking marijuana for medical uses." The IOM report released that day was the result of two years of research that was funded by the White House drug policy office, which comprised a meta-analysis of all existing data on marijuana's therapeutic uses .

Medicinal Value
Marijuana is one of the safest therapeutically active substances known. No one has ever died from an overdose, and it has a wide variety of therapeutic applications:

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Relief from nausea and increase of appetite;

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Reduction of intraocular ("within the eye") pressure;

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Reduction of muscle spasms;

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Relief from chronic pain.

Marijuana is frequently beneficial in the treatment of the following conditions:

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AIDS. Marijuana can reduce the nausea, vomiting, and loss of appetite caused by the ailment itself and by various AIDS medications.

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Glaucoma. Marijuana can reduce intraocular pressure, thereby alleviating the pain and slowing -- and sometimes stopping -- the progress of the condition. (Glaucoma is the leading cause of blindness in the United States. It damages vision by increasing eye pressure over time.)

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Cancer. Marijuana can stimulate the appetite and alleviate nausea and vomiting, which are common side effects of chemotherapy treatment.

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Multiple Sclerosis. Marijuana can limit the muscle pain and spasticity caused by the disease, as well as relieving tremor and unsteadiness of gait. (Multiple sclerosis is the leading cause of neurological disability among young and middle-aged adults in the United States.)

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Epilepsy. Marijuana can prevent epileptic seizures in some patients.

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Chronic Pain. Marijuana can alleviate the chronic, often debilitating pain caused by myriad disorders and injuries.

Each of these applications has been deemed legitimate by at least one court, legislature, and/or government agency in the United States.

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.

Marijuana could be helpful for millions of patients in the United States. Nevertheless, other than for the seven people with special permission from the federal government, medical marijuana remains illegal!

People currently suffering from any of the conditions mentioned above, for whom the legal medical options have proven unsafe or ineffective, have two options:

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Continue to suffer from the ailment itself; or

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Illegally obtain marijuana -- and risk suffering consequences such as:

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an insufficient supply due to the prohibition-inflated price or scarcity;

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impure, contaminated, or chemically adulterated marijuana;

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arrests, fines, court costs, property forfeiture, incarceration, probation, and criminal records.

Background

Prior to 1937, at least 27 medicines containing marijuana were legally available in the United States. Many were made by well-known pharmaceutical firms that still exist today, such as Squibb (now Bristol-Myers Squibb) and Eli Lilly. The Marijuana Tax Act of 1937 federally prohibited marijuana. Dr. William C. Woodward of the American Medical Association opposed the Act, testifying that prohibition would ultimately prevent the medicinal uses of marijuana.

The Controlled Substances Act of 1970 placed all illicit and prescription drugs into five "schedules" (categories). Marijuana was placed in Schedule I, defining it as having a high potential for abuse, no currently accepted medicinal use in treatment in the United States, and a lack of accepted safety for use under medical supervision.

This definition simply does not apply to marijuana. Of course, at the time of the Controlled Substances Act, marijuana had been prohibited for more than three decades. Its medicinal uses forgotten, marijuana was considered a dangerous and addictive narcotic.

A substantial increase in the number of recreational users in the 1970s contributed to the rediscovery of marijuana's medicinal uses:

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Many scientists studied the health effects of marijuana and inadvertently discovered marijuana's astonishing medicinal history in the process.

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Many who used marijuana recreationally also suffered from diseases for which marijuana is beneficial. By fluke, they discovered its therapeutic usefulness.

As the word spread, more and more patients started self-medicating with marijuana. However, marijuana's Schedule I status bars doctors from prescribing it and severely curtails research.

The Struggle in Court

In 1972, a petition was submitted to the Bureau of Narcotics and Dangerous Drugs -- now the Drug Enforcement Administration (DEA) -- to reschedule marijuana to make it available by prescription.

After 16 years of court battles, the DEA's chief administrative law judge, Francis L. Young, ruled:

"Marijuana, in its natural form, is one of the safest therapeutically active substances known. ...

"... [T]he provisions of the [Controlled Substances] Act permit and require the transfer of marijuana from Schedule I to Schedule II.

"It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance. ..."
(September 6, 1988)

Marijuana's placement in Schedule II would enable doctors to prescribe it to their patients. But top DEA bureaucrats rejected Judge Young's ruling and refused to reschedule marijuana. Two appeals later, petitioners experienced their first defeat in the 22-year-old lawsuit. On February 18, 1994, the U.S. Court of Appeals (D.C. Circuit) ruled that the DEA is allowed to reject its judge's ruling and set its own criteria--enabling the DEA to keep marijuana in Schedule I.

However, Congress still has the power to reschedule marijuana via legislation, regardless of the DEA's wishes.

Temporary Compassion

In 1975, Robert Randall, who suffered from glaucoma, was arrested for cultivating his own marijuana. He won his case by using the "medical necessity defense," forcing the government to find a way to provide him with his medicine. As a result, the Investigational New Drug (IND) compassionate access program was established, enabling some patients to receive marijuana from the government.

The program was grossly inadequate at helping the potentially millions of people who need medical marijuana:

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Most patients would never consider the idea that an illegal drug might be their best medicine;

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Most patients fortunate enough to discover marijuana's medicinal value did not discover the IND program;

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Most of those who did learn of the program could not find doctors willing to take on the arduous task of enrolling in and working through the IND program.

In 1992, in response to a flood of new applications from AIDS patients, the Bush administration closed the program to all new applicants. On December 1, 1999, the Clinton administration restated that the IND program would not be reopened. Consequently, the IND program remains in operation only for the seven surviving previously approved patients.

Public Opinion

There is tremendous public support for ending the prohibition of medical marijuana:

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Since 1996, a majority of voters in Alaska, California, Colorado, the District of Columbia, Maine, Nevada, Oregon, and Washington state have voted in favor of ballot initiatives to remove criminal penalties for seriously ill people who grow or possess medical marijuana. Recent polls have shown that public approval of these laws has increased since they went into effect.

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A 1990 scientific survey of oncologists (cancer specialists) found that 54% of those with an opinion favored the controlled medical availability of marijuana and 44% had already broken the law by suggesting at least once that a patient obtain marijuana illegally. [R. Doblin & M. Kleiman, "Marijuana as Antiemetic Medicine," Journal of Clinical Oncology 9 (1991): 1314-1319.]

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A Pew Research poll conducted February 14-19, 2001, found that 73% of American adults supported permitting doctors to prescribe marijuana for their patients. Over the last decade, polls have consistently shown between 60% and 80% support for legal access to medical marijuana.

Changing State Laws

The federal government has no legal authority to prevent state governments from changing their laws to remove state-level criminal penalties for medical marijuana use. Indeed, Hawaii enacted a medical marijuana law via its state legislature in June 2000. State legislatures have the authority and moral responsibility to change state law to:

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exempt seriously ill patients from state-level prosecution for marijuana possession and cultivation; and

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exempt doctors who recommend medical marijuana from prosecution or the denial of any right or privilege.

Even within the confines of federal law, states can enact reforms that have the practical effect of removing the fear of patients being arrested and prosecuted under state law -- as well as the symbolic effect of pushing the federal government to allow doctors to prescribe marijuana.

U.S. Congress: The Final Battleground

State governments that want to allow marijuana to be sold in pharmacies have been stymied by the federal government's overriding prohibition of marijuana.

Patients' efforts to bring change through the federal courts have made little progress, as the courts tend to defer to the DEA, which is aggressively working to keep marijuana illegal.

Efforts to obtain FDA approval of marijuana are similarly stalled. Though some small-scale studies of marijuana are now underway, the National Institute on Drug Abuse -- the only legal source of marijuana for clinical research in the U.S. -- has consistently made it difficult (and often nearly impossible) for researchers to obtain marijuana for their studies. Under the present circumstances, it is virtually impossible to do the sort of large-scale and extremely costly trials required for FDA approval.

In the meantime, patients continue to suffer. Congress has the power and the responsibility to change federal law so that seriously ill people nationwide can use medical marijuana without fear of arrest and imprisonment.