Medicinal Marijuana 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 medical 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:
• Many scientists studied the health effects of marijuana and inadvertently discovered marijuana's medicinal uses in the process.
• Many who used marijuana recreationally also suffered from diseases for which marijuana is beneficial. By accident, they discovered its therapeutic value.
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 has the power to reschedule marijuana via legislation, regardless of the DEA's wishes.
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. Many patients would never consider the idea that an illegal drug might be their best medicine, and most who were fortunate enough to discover marijuana's medicinal value did not discover the IND program. Those who did often could not find doctors willing to take on the program's arduous, bureaucratic requirements.
In 1992, in response to a flood of new applications from AIDS patients, the George H.W. Bush administration closed the program to new applicants, and pleas to reopen it were ignored by subsequent administrations. The IND program remains in operation only for the seven surviving, previously-approved patients.
Public and Professional Opinion
There is wide support for ending the prohibition of medical marijuana among both the public and the medical community:
• Since 1996, a majority of voters in Alaska, California, Colorado, the District of Columbia, Maine, Montana, 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. Polls have shown that public approval of these laws has increased since they went into effect.
• A CNN/ Time poll published November 4, 2002 found that 80% of Americans believe that “adults should be allowed to legally use marijuana for medical purposes if their doctor prescribes it. ...” Over the last decade, polls have consistently shown between 60% and 80% support for legal access to medical marijuana. Both a statewide Alabama poll commissioned by the Mobile Register , published in July 2004, and a November 2004 Scripps Howard Texas poll reported 75% support.
• Organizations supporting some form of physician-supervised access to medical marijuana include the American Academy of Family Physicians, American Nurses Association, American Public Health Association, the New England Journal of Medicine and many others.
• 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 suggested 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.]
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. Hawaii enacted a medical marijuana law via its state legislature in 2000 and Vermont enacted a similar law in 2004. State legislatures have the authority and moral responsibility to change state law to:
• exempt seriously ill patients from state-level prosecution for medical marijuana possession and cultivation; and
• 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 works aggressively to keep marijuana illegal. However, a Supreme Court case being considered during the 2004-2005 session could limit federal attacks on patients in states with medical marijuana laws.
Efforts to obtain FDA approval of marijuana are similarly stalled. Though some small 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. At present, it is effectively impossible to do the sort of large-scale, 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.