The Supreme Court Monday put on its docket for consideration a case from patients who used marijuana after the treatment was recommended by their physician. Note the doctors did not write a prescription -- that would have taken them out of state law and into federal regulations and licensure troubles.
This is not the first time medical marijuana has been considered by the court. A 2001 decision in United States vs. the Oakland Cannabis Buyers' Cooperative was unanimous: There was no medical-use exception to the federal law prohibiting the growing and distribution of marijuana.
This reconsideration, from the 9th U.S. Circuit Court of Appeals, looks at whether Congress exceeded its authority when it banned the personal use of medical marijuana. In Ashcroft et al. vs. Raich et al., the lower court ruled that Congress, in passing the Controlled Substances Act under the constitutional clause authorizing it to regulate interstate commerce, exceeded its power when it included medical marijuana.
The high court decision to hear the case comes as the House of Representatives next month is set to consider an appropriations bill, during which it is expected supporters of medical marijuana will introduce an amendment ordering the Justice Department to stop interfering with states that have passed laws allowing for such use. A similar amendment last year got 152 votes in the House.
Nine states have thumbed their noses at federal law, passing legislation allowing the possession or growth of marijuana for medical purposes if such treatment is supported by a physician. The most recent state is Vermont, where Republican Gov. James Douglas, who was concerned about illegal drug use and skeptical about the medical efficacy of marijuana, allowed the legislation to become law in May without his signature because of its popular support.
"I feel, as most Vermonters do, that we must do what we can to ease the pain of dying Vermonters," Douglas said in a statement.
Arizona passed an initiative in 1996 but it never got off the ground because it made medical marijuana legal with a prescription. Maryland last year passed a law that does not make it legal but says if a person is arrested for marijuana possession and they can provide a medical defense, then the maximum fine is $100, as opposed to the regular punishment of a year in jail.
"I do think we are really approaching the point of political mass," said Bruce Mirken, director of communications for the Marijuana Policy Project in Washington.
"In the long-run patients will be protected," Mirken told United Press International. "It's a question of when, not if. If we lost (at the Supreme Court), it won't stop the progress of what is obviously an issue of science and justice."
Medical marijuana represents a growing state and federal clash, pitching healthcare against law enforcement at the policy level. A federal policy could ensure those who benefit from medical marijuana can get it and researchers studying what marijuana can and cannot do medically will have access to it -- all the while helping in the effort to keep it off the streets and away from kids.
Federal regulation of medical use could streamline what might become a confusing legal patchwork of different state regulations. Politics and science, however, stand in the way.
The politics of legalized medical marijuana are bipartisan. Neither the Clinton administration nor the Bush administration supported it; however Mirken said the Bush administration has been more aggressive in its opposition and its enforcement against patients who use it.
Sen. John Kerry, the presumed Democratic candidate for president, has said publicly that if elected he will stop Drug Enforcement Administration raids on seriously ill patients who use marijuana for pain control. He also said during the campaign he supports research into the efficacy of medical marijuana, but left open the issue of legalizing it pending more scientific evidence.
A real sticking point from a regulatory standpoint, though, is providing scientific evidence of medical marijuana's efficacy. The War on Drugs has made it tough for researchers to launch studies and get quantities of the drug needed to perform the research.
Mirken forwarded to UPI, however, lists dozens of U.S. medical groups that support some aspect of medical marijuana, whether it be full legalization under a physician's care or research into its effectiveness treating disease and helping patients cope with severe, chronic pain.
Medical evidence showing marijuana's efficacy remains scattered and inconclusive, although there is plenty of anecdotal evidence it eases chronic pain.
In 1999 the Institute of Medicine concluded smoked marijuana was potentially effective for a short list of symptoms and called for rigorous clinical trials and development of a delivery system so patients do not have to inhale. The 18-month, $1 million study said marijuana, as compared to the legal, synthetic pill Marinol containing the active ingredient of marijuana, is potentially effective in treating chronic pain, nausea from cancer chemotherapy, lack of appetite and wasting in AIDS patients.
It rebuked beliefs marijuana was effective for treating glaucoma, Parkinson's or Huntington's diseases, seizures and migraines.
There is also a strong opposition to medical marijuana from the DEA. It uses scientific research to point out the health ill effects of marijuana use include the cancer-causing agents inherent in smoking the plant, increased risk of heart attack, the potential for a weakened immune system, the conclusion by some studies marijuana acts as a gateway to stronger drugs -- as well as its own declaration that medical use interferes with the agency's ability to keep marijuana off the street.
Mark R. Trouville, special agent in charge of the DEA's New England Field Division, testified before the Vermont House Committee on Health and Welfare, during April deliberations on its legislation, that medical use laws obstruct federal law.
"More than seven years of experience have demonstrated that when a state legalizes marijuana under its law, residents are effectively encouraged to violate federal drug laws," he testified. "I would like to point out that the bill before you today is conspicuously silent with regard to the fact that the cultivation, distribution, and possession of marijuana, even in compliance with the bill, would violate federal law and subject the individuals engaged in such conduct to criminal and civil prosecution. That omission points to a glaring practical issue in the legislation -- there is simply no way for it to be given effect without encouraging and facilitating trafficking in a federally controlled substance."
The government, however, already has experience growing marijuana for legal use. The National Institute on Drug Abuse set up a compassionate use program in 1978 under an investigational new drug permit to settle a lawsuit against the government. Physicians who received such an IND could provide marijuana to their patients. The program ended in 1992 but the NIDA has continued to supply medical marijuana to a handful of patients grandfathered in under that program.
To provide for that program and other marijuana research, NIDA contracted with the University of Mississippi to grow cannabis for research purposes.
The Supreme Court has given medical marijuana advocates additional steam to continue their fight to get state laws passed and it could help shape the larger debate over federal legalization. A decision in favor of the California patients could provide a safe harbor for users in states that have medical use laws, while a decision against could ensure the state and federal divide over medical use grows wider.
UPI's Mike Kirkland at the Supreme Court contributed to this report
Ellen Beck is UPI's Health Policy Editor. E-mail firstname.lastname@example.org