Arches. Photo by Daniel Chia
May
15
2012

Medical Marijuana Policy in the United States

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Disclaimer: This article is meant to be purely educational—HOPES neither condones nor condemns the use of marijuana for medicinal purposes.


Throughout the past several decades the use of marijuana for medicinal purposes has received increasingly more attention.  The active ingredient in marijuana belongs to a class of compounds called cannabinoids, which have been used to treat numerous conditions ranging from insomnia and PMS to chemotherapy-induced nausea and appetite loss associated with AIDS therapy.  More recently, cannabinoids have been shown to be effective against motor disturbances in patients with multiple sclerosis.  This latter finding points to a potential use of medicinal marijuana to treat movement problems in Huntington’s Disease.

While the biochemical and physiological effects of marijuana have been examined in ever more precise ways through scientific research, discussions over the appropriate role of the drug in society have long been mired in social and political controversy. Medical marijuana is currently legal or soon-to-be legal in eighteen states, although these policies conflict with the federal government’s drug laws. The current federal stance on marijuana also places strict limitations on its use in biomedical research. This article will give an overview of marijuana’s use and regulation in United States history, and then address some of the contradictions and controversies over medical marijuana policy today.

Brief history of marijuana in US ^

The cultivation of Cannabis sativa, otherwise known as marijuana, has been documented in the United States since the early 17th century, when settlers brought the plant to Jamestown, Virginia to produce hemp. The plant was also recognized for its medicinal purposes, even meriting an entry in the 1850 edition of the medical reference book United States Pharmacopeia. These relatively permissive attitudes toward marijuana would, however, change dramatically in the beginning of the 20th century, as social reform movements attempted to eradicate the recreational use (and abuse) of marijuana and other substances such as alcohol, morphine, and opium. Local and state jurisdictions codified these prohibitions, passing laws that restricted the non-medical use of marijuana or banned the drug completely. By the time Congress passed the 1937 Marijuana Tax Act, a bill that levied a fee on commercial transactions involving the Cannabis sativa plant, every state had laws in place that criminalized the general possession or sale of marijuana.

Despite the regulations and restrictions, the prescription of marijuana for medical use remained legal until 1970, when the federal government enacted the Comprehensive Drug Abuse Prevention and Control Act (now know as the Federal Controlled Substance Act). This law classified controlled substances into five “schedules”, a framework designed to provide a hierarchy of their potential for abuse, medical utility, and health consequences. (See Table 1.) Marijuana was categorized as a Schedule I controlled substance, meaning that it was now illegal for physicians to prescribe the drug to their patients.

Table 1. Criteria for Scheduled Substances

Not long after the drug’s outright ban, an advocacy group known as the National Organization for the Reform of Marijuana Laws (NORML) petitioned the federal government to “reschedule” marijuana to allow for regulated medical use. Proponents pointed to the drug’s widespread recreational use and the absence of significant associated harm, as well as its potential to benefit individuals suffering from serious illnesses. This petition would wind its way through the federal courts system for 22 years before ultimately being struck down by the District of Columbia Court of Appeals. However, the publicity that it generated (and perhaps the prominence of drug culture in 1960s/1970s America) likely played an important role in prompting state authorities to reassess the strict restrictions against marijuana.

By 1982, 31 states and the District of Columbia had passed legislation pertaining to medical marijuana, many of them establishing therapeutic research programs that allowed physicians to distribute the drug to patients enrolled in approved clinical trials. (However, because of the strict protocols involved in obtaining approval, only eight such programs became operational.) In anticipation of a federal policy shift, six states reclassified marijuana as a Schedule II substance. Although this move theoretically allowed qualifying physicians to prescribe marijuana without fear of arrest by local or state police, providers were still subject to federal arrest and prosecution if they recommended the drug. Even in the states that opted to reschedule on their own, more protection was needed before marijuana could be used for medicinal purposes.

State legalization – The case of California^

In the absence of progress on the federal front, advocates for medical marijuana took to local- and state-level initiatives to loosen restrictions on growing, distributing, and using the drug. Perhaps the best-known example of this strategy has been California’s Proposition 215, a 1996 ballot measure protecting patients and physicians from state prosecution. Understanding the success of this referendum and its reverberations across American law and culture provides a good overview of the benefits and challenges of local- and state-level reform.

Even before the passage of Proposition 215, medical marijuana had found support in various regions across California. In November 1991, the voters of San Francisco passed a measure known as Proposition P, which urged state lawmakers to make marijuana available for medical use. California’s elected officials seemed to be similarly inclined, approving laws in 1994 and 1995 that recognized the use of medical marijuana. Despite public support for the legislation, then-Governor Pete Wilson vetoed both measures, actions consistent with his strong stance against marijuana use for any purpose.

Recognizing the limitations of attempting reform through the legislature, a long-time activist named Dennis Peron spearheaded a drive to legalize marijuana by bringing the issue directly to state voters in the 1996 election. Since the turn of the 20th century, California’s constitution has allowed citizens and organizations to put initiatives on statewide ballots for a yes-or-no vote. This referendum process is a legacy from the Progressive Era of the same time period designed to bolster direct democracy. To get his initiative on the November ballot, Peron needed to gather 433,000 signatures, a long and expensive undertaking that required significant organization and financial resources.

To mobilize this effort, Peron and his allies formed a political action group (PAC) known as Californians for Compassionate Use that took the responsibility of writing the initiative, which it titled “The Compassionate Use Act.” However, this measure also benefited from the substantial largess of a PAC known as California for Medical Rights, whose donors included George Soros, a billionaire financier, and Laurence Rockefeller, of Rockefeller family fame. With over $1 million, supporters of the measure gathered about 850,000 signatures, which Peron noted was one-fifth of the total number of votes that they needed for passage in November.

By the time Proposition 215 came up to a vote, Peron and his allies had out-organized and outspent their opposition many times over, raising nearly $2.5 million dollars. (The bill’s opponents, who called themselves Citizens for Drug-Free California, took in $33,612 in contributions.) On November 5, 1996, the Compassionate Use Act passed with the approval of 56 percent of state voters, making California the first state to establish a legal framework for medical marijuana.

At its core, Proposition 215 protects patients and their caregivers who cultivate, possess, or use marijuana for pre-approved medicinal purposes from state-level prosecution. The statute also guarantees that physicians who recommend marijuana for their patients would not be punished by state authorities. Critics of the initiative, however, noted that its language seemed deliberately ambiguous, leaving room for a broader interpretation of its provisions than what initially meets the eye. For example, Section 1(A) of the measure lays out the ailments which would qualify for treatment using medical marijuana: “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief (emphasis added).” Critics note that “any other illness” could allow for vague symptoms such as stress, anxiety, and headaches to qualify, allowing the de facto legalization of marijuana for general use. Dennis Peron did not calm such fears by declaring after the passage of Proposition 215: “I believe all marijuana use is medical—except for kids.”

Two months after the passage of the Compassionate Use Act, the Clinton Administration took a coordinated hard line against the new law. In a press conference, Barry McCaffrey, the director of the Office of National Drug Control and Policy announced that: “Nothing has changed. Federal law is unaffected by these propositions.” Secretary of Health and Human Services Donna Shalala worried that California’s initiative reinforced the belief that marijuana was benign. Finally, Attorney General Janet Reno stated that she was reallocating federal enforcement resources to target California physicians who recommended marijuana to their patients, threatening to revoke their registration with the Drug Enforcement Agency (DEA) and prohibit them from participating in the Medicare and Medicaid programs.

Despite staunch federal opposition, subsequent court rulings blunted some of the threats, even though they did not provide much clarity on the everyday legality of medical marijuana use in California. For example, not long after the Clinton Administration’s strong rebuke of the new Californian law, a group of physicians, patients, and nonprofits filed a complaint (Conant v. seeking to block the federal government from punishing physicians that recommended marijuana to their patients. This complaint, known as Conant v. McCaffrey, was settled in September of 2000, when the US District Court for Northern California (a federal judiciary) issued a ruling that limited the ability of federal officials to punish physicians who prescribed medical marijuana under the guidelines of Proposition 215.

However, a subsequent Supreme Court decision in 2005 (Gonzalez v. Raich) maintained that under the Controlled Substance Act, federal law enforcement had the right to punish anyone who dispensed, possessed, or used marijuana, regardless of state laws. This ruling, however, did not strike down California’s Compassionate Use Act, but was instead an affirmation of the federal government’s power under the U.S. Constitution. Specifically, the justices ruled by a vote of six to three that the Commerce Clause, which gives Congress the power to regulate interstate commerce, allowed the federal government to prohibit the use of marijuana because of its potential for trade on the illicit market. The Court’s majority opinion did not address the obvious conflict that persisted between federal and state law.

Medical Marijuana and Research^

At the time of this article’s publication, marijuana is classified by the federal government as a Schedule I controlled substance, which means that the drug has no accepted medical benefit and a high potential for abuse. (See Table 1.)

Because of this designation, biomedical investigators interested in including marijuana in their research must first obtain a special license from the Drug Enforcement Agency (DEA), and then apply for access to the supply kept by the National Institutes of Drug Abuse (NIDA) for research purposes. The challenges involved in obtaining the drug, along with political and financial considerations, have significantly dampened attempts to examining the potential use of marijuana as a therapeutic agent. For example, in the 1990s, both the DEA and the NIDA refused numerous requests by Dr. Donald Abrams, a professor at the University of California, San Francisco who was interested in investigating the potential use of marijuana to counter the weight loss seen in individuals affected by AIDS-wasting syndrome. Though his study was reviewed and approved by several regulatory bodies, including the FDA, the DEA and NIDA’s decisions effectively blocked Dr. Abrams’ research for several years before finally approving it in 1998.

Scenarios like Dr. Abrams’ have prompted major scientific and professional organizations to issue recommend a reexamination the existing federal policy. Committees from the National Institutes of Health, the American Medical Association, the Institute of Medicine, and the American College of Physicians, have all noted the potential therapeutic uses of marijuana and have called for federal regulations to recognize and allow for such research. For example, at the 2009 meeting of the American Medical Association’s House of Delegates (the organization’s policy-making arm), Board of Trustees member Dr. Edward L. Langston noted:

“[The current scheduling] limits the access for cannabinols [a class of compounds that include the active ingredient in marijuana] for even research—it is very difficult…We believe there should be a scientific review of cannabinols in the treatment of pain and other issues…We support research on the use of cannabinols for medical use”

It is important to note that these organizations’ support for further research should not be interpreted as support for cannabis programs or the legalization of marijuana, or that the present scientific evidence supports the use of marijuana as a prescription drug. Nevertheless, these professional health organizations have clearly sent a message that the current restrictions on marijuana research do not support active investigation into the drug’s physiological effects. Whether the federal government decides to take these recommendations into account remains to be seen.

Medical marijuana in the United States today^

As of the beginning of 2012, medical marijuana legislation is either in place or set to take effect in 17 states and the District of Columbia. (Figure 1.) Because these laws were passed on a state-by-state basis, there exists a patchwork of state policies governing medical marijuana. While Alaska only allows for the possession of one ounce and six plants, with no legal protection from arrest, Oregon permits patients to possess up to 24 ounces and 15 plants, with state registration protecting qualified patients from prosecution. Though most states which have decriminalized medical marijuana have also provided legal protections for its users, the majority of these laws have not established mechanisms for dispensing the drug or for regulating its quality and safety. The very definitions of what qualifies patients for medical marijuana can vary greatly, with New Mexico, for instance, only permits its use for a limited set of conditions (cancer, glaucoma, HIV/AIDS, epilepsy, multiple sclerosis, spinal cord damage, and terminal illness), while California has an expansive list that encompasses general ailments such as migraines, severe or chronic pain, and of course “any other illness for which marijuana provides relief.”

Figure 1. The states in green have laws concerning medical marijuana as of May of 2012.

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In 2009, shortly after President Barack Obama took office, the Department of Justice issued a memorandum to its 93 U.S. Attorneys informing them that prosecuting individuals who use medical marijuana in compliance with state laws should not be a priority. However, federal law enforcement agencies have continued to conduct raids on marijuana dispensaries, demonstrating a continuing commitment to enforcing the federal Controlled Substance Act. For instance, in October of 2011, the four U.S. Attorneys of California issued warnings to the landlords of dozens of marijuana dispensaries throughout the state, accusing their tenants of using the Compassionate Use law as a front for large-scale drug sales. Such enforcement initiatives demonstrate the tenuous balance that still exists between federal and state laws on medical marijuana.

Unless the federal government takes steps to reschedule marijuana, or the states which have decriminalized the drug move to reverse such policies, the legality of medicinal marijuana will likely remain hard to define.

Further reading:^

  1. http://topics.nytimes.com/top/reference/timestopics/subjects/m/marijuana/index.html?scp=1-spot&sq=marijuana&st=cse
    This New York Times special provides an excellent overview of recent developments concerning the legalization of marijuana for medicinal purposes.
  2. http://www.npr.org/2011/07/12/126137481/medical-marijuana-laws-a-state-by-state-comparison
    This interactive map by National Public Radio shows which states have decriminalized medical and how their laws differ
  3. http://www.time.com/time/health/article/0,8599,1931247,00.html
    This TIME article provides a brief history of medical marijuana in the United States
  4. http://www.cdph.ca.gov/programs/mmp/pages/compassionateuseact.aspx
    California’s Compassionate Use Act—note the list of treatments eligible under the law in Section 1(A).
  5. Hoffman DE, Weber E. Medical Marijuana and the Law. 2010. New England Journal of Medicine 362(16): 1453-1456.
    This very readable article provides a good overview of the status of state medical marijuana laws as of 2010.
  6. Vitello M. Proposition 215: De Fact Legalization of Pot and the Shortcomings of Direct Democracy. U. Mich. J.L. 31(3): 707-776.
    Although the intended audience of this article is likely legal students and scholars, the author provides a summary of the events leading up to and following California voters passing Proposition 215.
  7. Annas GJ. Reefer Madness—The Federal Response to California’s Medical-Marijuana Law. 1997. Legal Issues in Medicine 337(6): 435-439.
    This article gives a summary of how the Clinton Administration’s reaction to Proposition 215, including the government’s main arguments against the legalization of medical marijuana.
  8. Cohen P. Medical marijuana 2010: It’s Time to Fix the Regulatory Vacuum. 2010. Journal of Law, Medicine & Ethics 38(3): 654-666.
    In this article, the author argues that the federal government’s current position on medical marijuana’s use and research is flawed.
  9. Pacula RL, Chriqui JF, Reichmann DA, Terry-McElrath YM. State Medical Marijuana Laws: Understanding the Law and their Limitations. Journal of Public Health Policy 25(4): 413-439.
    The authors provide an excellent summary of marijuana’s complicated history in the United States.

-Y. Lu, 5-15-12