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Last Updated June 24, 2005
Medical marijuana made national headlines this year when the Supreme
Court ruled that the federal government can prosecute medical marijuana
patients, even in states that have compassionate use laws. This ruling was
based on the Commerce Clause, and was not a referendum on the validity of
medical marijuana. In fact, one of the Supreme Court justices urged
medical marijuana advocates to make the will of the people heard in
Congress by changing federal law.
Federal Law
In the wake of the June 2005 Supreme Court decision, Congress had an
opportunity to protect patients by passing an amendment to a Justice
Department spending bill that would have prohibited the department from
spending any money to undermine state medical marijuana laws. The
amendment, offered for the third year in a row by Rep. Maurice Hinchey
(D-22nd/NY) and Rep. Dana Rohrabacher (R-46th/CA), did not pass but got
161 votes - more than it has ever received before. This is substantial
progress given that in 1998, the U.S. House of Representatives voted
311-94 for a non-binding resolution condemning medical marijuana.
Marijuana is classified as a Schedule
I substance, defined as having a high potential for abuse and no
medicinal value. Multiple petitions for rescheduling marijuana have been
submitted by reform advocates over the last 30 years. The most recent,
submitted in 2002 by the Coalition for Rescheduling Cannabis, calls for a
full review of the scientific research and medical practice regarding
marijuana. The Food and Drug Administration has yet to respond to this
petition.
In 1978, the federal government was forced to allow some patients
access to medical marijuana after a "medical necessity" defense was
recognized in court, creating the Investigational New Drug (IND)
compassionate access program. The IND, which allowed some patients to
receive medical marijuana from the government, was closed to new patients
in 1992 after it was flooded by applications from AIDS patients. Today,
seven surviving patients still receive medical marijuana from the federal
government.
State Law
The Raich Supreme Court decision does not overturn or affect state law,
and 99% of all marijuana arrests take place at the state or local level.
This means that state laws afford substantial protection to medical
marijuana patients. Currently, laws that effectively remove state-level
criminal penalties for growing and/or possessing medical marijuana are in
place in Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana,
Nevada, Oregon, Vermont and Washington. Ten states, plus the District of
Columbia, have symbolic medical marijuana laws (laws that support medical
marijuana but do not provide patients with legal protection under state
law).
In 2005, New Mexico came very close to passing a medical marijuana
bill. The governor pleged to sign the bill, but it was not called for a
vote in the House before the end of the legislative session. In 1998,
voters in the District of Columbia approved a medical marijuana initiative
by 69% but Congress was able to nullify the vote results because D.C. is a
federal district and not a state.
Twelve states have medical marijuana research laws, and only fifteen
states have never had a positive medical marijuana law.
The Courts
In addition to changing state laws, medical marijuana advocates have
pursued reform through the courts, most recently in the Raich v. Ashcroft
Supreme Court case. Angel Raich, a medical marijuana patient in
California, sued the federal government to stop federal raids against
patients. Though she did not win the case, the ruling left state medical
marijuana laws intact.
In 1997, Conant
v. McCaffrey, a class-action lawsuit, was filed on behalf of
physicians and seriously ill patients against Drug Czar General Barry
McCaffrey and other top federal officials who threatened to revoke
prescription licenses or criminally prosecute physicians who recommend
medical marijuana. In 2002, a three-judge panel of the Ninth Circuit Court
of Appeals unanimously decided to uphold the right of doctors to recommend
marijuana to their patients and of patients to receive that
recommendation. Judge Mary Schroeder wrote the majority opinion, which
noted that the federal government’s policy of revoking doctors' licenses
“leaves…no security for free discussion.” A concurring opinion by Judge
Alex Kozinski stepped even further, noting the prevailing evidence on the
medical usefulness of marijuana.
Public Support
Medical marijuana is one of the most widely supported issues in drug policy reform.
Numerous published studies suggest that marijuana has medical value in
treating patients with serious illnesses such as AIDS, glaucoma, cancer,
multiple sclerosis, epilepsy, and chronic pain. In
1999, the Institute of
Medicine, in the most comprehensive study of medical marijuana's
efficacy to date, concluded, "Nausea, appetite loss, pain and anxiety . .
. all can be mitigated by marijuana." Allowing patients legal access to
medical marijuana has been discussed by numerous organizations, including
the AIDS Action Council, American Bar Association, American Public Health
Association, California Medical Association, National Association of
Attorneys General, and several state nurses associations.
Public opinion is also in favor of ending the prohibition of medical
marijuana. According to a 1999 Gallup poll, 73% of Americans are in favor
of "making marijuana legally available for doctors to prescribe in order
to reduce pain and suffering." In a 2004 poll commissioned by AARP, 72% of
Americans ages 45 and older thought marijuana should be legal for
medicinal purposes if recommended by a doctor. Also, since 1996, voters in
eight states plus the District of Columbia have passed favorable medical
marijuana ballot initiatives. |
