The Compassion Drug

June 09, 2005

Steph Sherer, Tom Paine

On June 6, the Supreme Court handed down a split ruling, finding that the federal government has the ability to prosecute medical marijuana patients. While the ruling was disappointing to advocates for medical marijuana, the decision’s effect is to maintain the status quo. The Drug Enforcement Agency can still raid the homes of patients, it can still arrest and confiscate the property of patients, and it can still prosecute and imprison patients.

The government’s position on medical marijuana and its ability to act on that position remains the same today as it did before the ruling.

However, the Supreme Court has now joined patients, doctors, nurses and medical associations in looking to Congress for leadership on marijuana’s value as medicine. Writing for the majority, Justice John Paul Stevens recommended that the proper place to debate the issue is Congress.

While the court did acknowledge the medicinal value of marijuana, it failed to act decisively to protect its use.  Instead, the court chose to leave patients at the mercy of Washington, without a political party to call home.

The federal government, at best, has failed to provide leadership, and at worst is enforcing what is ultimately an unpopular political decision: Ignoring or distorting the facts about marijuana as medicine while clogging our courts and our jails with those—who in a sane world—would not be considered criminals.

Medical marijuana helps patients suffering from chronic pain, AIDS, cancer, multiple sclerosis and a host of other conditions. The therapeutic benefits of marijuana are so well-documented that 11 states have passed laws legalizing marijuana for medical use. And polls find a majority of Americans support the use of marijuana for medical purposes.

The question now is: Who will lead?

Clearly, the Bush administration has stated its position—in the court case, and in patients' houses.  And Congress? Congress has routinely chosen to punt this political football back to the administration, be it DEA, FDA, HHS or any of the agencies in Washington's alphabet soup.  Will the political parties lead?  Despite the obvious state's rights element of the fight for safe and legal access, the Republicans will not open their doors. Despite their professed belief in compassion, the Republicans appear not to consider patient well-being part of the "culture of life." Despite their support for an individual’s right to choose healthcare, Democrats won't make medical marijuana part of their platform. Although voters in 11 states have expressed their support for the issue, the Democrats have failed to demonstrate the political leadership to protect the voice of the people.

Marijuana’s History In Congress

For nearly 100 years, citizens have been advocating for Congress to recognize the therapeutic benefits of marijuana. In 1937, when Congress was discussing “The Marijuana Tax Act”, the legal counsel to the American Medical Association William C. Woodword told Congress: “I have been instructed by the board of trustees of the American Medical Association to protest on behalf of the association against the enactment…The obvious purpose of and effect of this bill is to impose so many restrictions on the medicinal use [of cannabis] as to prevent such use altogether. ... It may serve to deprive the public of the benefits of a drug that on further research may prove to be of substantial benefit." Ignoring this advice of the nation’s largest medical association, Congress passed the act, making medical research next to impossible.

In 1972, Nixon commissioned Raymond Shafer to lead the National Commission on Marihuana and Drug Abuse to decide the appropriate scheduling for marijuana. It found "Marihuana's relative potential for harm to the vast majority of individual users and its actual impact on society does not justify a social policy designed to seek out and firmly punish those who use it. This judgment is based on prevalent use patterns, on behavior exhibited by the vast majority of users and on our interpretations of existing medical and scientific data." Despite this finding, Congress left marijuana classified in the most serious category of drugs, Schedule 1. Even cocaine is classified in a lower schedule.

To remedy congressional inaction, a rescheduling petition was filed with DEA in 1978—again seeking to have marijuana re-categorized to a schedule that would allow further research and distribution. The DEA's Administrative Law Judge, Francis Young concluded: "Marijuana, in its natural form, is one of the safest therapeutic active substances known. It would be arbitrary and capricious for the DEA to continue to stand between those suffers and the benefits of this substance." Despite DEA's ruling, HHS and FDA maintained marijuana's status as a Schedule 1 drug.

In 1996, medical marijuana patients took this issue to the states, winning voter initiatives and state legislation. Since then, 11 states have passed compassionate laws, with legislation pending in five more states. 

Challenges continued through the '80s, '90s and even today. A petition filed in 2002, again seeking to reschedule marijuana, is still waiting for a hearing at the Department of Health and Human Services. And a Data Quality Act petition was filed and ignored in 2004.

What’s Different Today

The court’s ruling on Monday alerted Congress to the fact that it has the power to reschedule. It alerted the administration that while the court felt that the DEA had legal authority to prosecute patients, it was not wise to do so. And most importantly, it acknowledged the scientific evidence before the court suggested that marijuana has medical benefits.

What is needed now is leadership in Congress. Now is the time for the congressional delegations from the 11 medical marijuana states to advocate for the will of their constituents. Washington has made this about politics, so Washington must fix it. That leadership should start where it is most powerful. The citizens of California were the first to decide that patients should have safe access to medical marijuana.  Nancy Pelosi, the most powerful Democrat in the House of Representatives, should now carry the mantle to ensure that the citizens she represents can realize the democratic choice they made, and that patients she represents can continue to live dignified lives.

Nancy, use your power as Democratic Whip next week to urge support for the Hinchey-Rohrabacher Amendment . This amendment will stop the DOJ and DEA from pursuing medical marijuana patients in your home state and others across the country.

Then use your position to end this war on patients once and for all by co-sponsoring HR 2087, the legislation to reschedule marijuana. It's the right thing to do, for California and for the nation.

Steph Sherer is a medical marijuana patient and the founder and executive director of Americans for Safe Access, the nation’s largest coalition of patients, doctors and advocates fighting for safe and legal access to medical marijuana.

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