Medical Marijuana and the Supreme Court
August 17, 2005
Susan Okie, MD, New England Journal of Medicine
Angel McClary Raich, a California woman at the center of therecent Supreme Court case on medical marijuana, hasn't changedher treatment regimen since the Court ruled in June that patientswho take the drug in states where its medicinal use is legalare not shielded from federal prosecution.A thin woman withlong, dark hair and an intense gaze, Raich takes marijuana,or cannabis as she prefers to call it, about every two wakinghours — by smoking it, by inhaling it as a vapor, by eatingit in foods, or by applying it topically as a balm. She saysthat it relieves her chronic pain and boosts her appetite, preventingher from becoming emaciated because of a mysterious wastingsyndrome. Raich and her doctor maintain that without accessto the eight or nine pounds of privately grown cannabis thatshe consumes each year, she would die.
Although Raich has embraced a public role advocating the medicinaluse of marijuana, she says that her health suffered during thehectic days following the announcement of the Court's decision,when a whirlwind schedule of press conferences and congressionalmeetings in Washington prevented her from medicating herselfwith cannabis as regularly as she needed to. "My body was shuttingdown on me," she said in an interview from her Oakland homelast month. "I'm scared of my health failing. I'm scared ofthe federal government coming in and doing more harm. [Recently,]the city of Oakland warned there were going to be some raids"on marijuana dispensaries. "We're all just waiting. Sittingon the frontline is extremely stressful."
In the Supreme Court case Gonzales v. Raich, the justices ruled6 to 3 that the federal government has the power to arrest andprosecute patients and their suppliers even if the marijuanause is permitted under state law, because of its authority underthe federal Controlled Substances Act to regulate interstatecommerce in illegal drugs. In practical terms, it is not yetclear what effect the Court's decision will have on patients.An estimated 115,000 people have obtained recommendations formarijuana from doctors in the 10 states that have legalizedthe cultivation, possession, and use of marijuana for medicinalpurposes. Besides California, those states are Alaska, Colorado,Hawaii, Maine, Montana, Nevada, Oregon, Vermont, and Washington.(Three weeks after the decision was announced, Rhode Island'slegislature passed a similar law and soon afterward overrodea veto by the state's governor.)
Immediately after the news of the high court's ruling, attorneysgeneral in the states that have approved the use of medicalmarijuana emphasized that the practice remained legal undertheir state laws, and a telephone survey of a random nationalsample of registered voters, commissioned by the Washington-basedMarijuana Policy Project, indicated that 68 percent of respondentsopposed federal prosecution of patients who use marijuana formedical reasons. Nationally, most marijuana arrests are madeby state and local law-enforcement agencies, with federal arrestsaccounting for only about 1 percent of cases. However, soonafter the decision was announced, federal agents raided 3 ofSan Francisco's more than 40 medical marijuana dispensaries.Nineteen people were charged with running an international drugring; they allegedly were using the dispensaries as a frontfor trafficking in marijuana and in the illegal amphetamine"ecstasy."
In California, the raids were widely viewed as a signal thatfederal drug-enforcement agents intended to crack down on abuseof the state's medical marijuana program. California has anestimated 100,000 medical marijuana users. Its 1996 law grantsdoctors much greater latitude in recommending the drug thando similar laws in other states, and the U.S. District Courtfor the Northern District of California ruled in 2000 that doctorswho prescribe marijuana are protected from federal prosecutionunder the First Amendment, provided that they do not help theirpatients obtain the drug. In San Francisco, some journalistsor investigators who posed as patients have reported that theyhad little difficulty obtaining a recommendation for medicalmarijuana, which allows the holder to purchase the drug froma dispensary. "We're empathetic to the sick," the Drug EnforcementAdministration's Javier Pena told reporters after the raids,"but we can't disregard the federal law."1
Even before the Supreme Court decision, many Californians hadbeen calling for stricter state regulation of medical marijuana.Some cities have banned marijuana dispensaries, and many countiesand cities — including San Francisco — have imposedmoratoriums on the opening of new ones. Some local jurisdictionsregister and issue identification cards to patients who usemarijuana for medical reasons, and state officials have beenworking on a voluntary statewide registration program. However,the officials recently put the program on hold, citing concernthat the issuance of identification cards to patients mightput state health officials at risk of prosecution for aidinga federal crime and that federal drug-enforcement agents mightseek state records in order to identify medical marijuana users.Registration of patients and the issuance of identificationcards by the state are required in seven other states that havelegalized the medical use of marijuana; patients can show thecard as a defense against arrest by local or state police forpossession of the drug. Maine and Washington do not issue identificationcards to patients.
Conditions for which marijuana is commonly recommended includenausea caused by cancer chemotherapy; anorexia or wasting dueto cancer, AIDS, or other diseases; chronic pain; spasticitycaused by multiple sclerosis or other neurologic disorders;and glaucoma. Frank Lucido, a Berkeley family practitioner whois Raich's doctor, said that so far, the Court ruling appearsto have had little effect on his patients who use medical marijuana.About 30 percent of Lucido's practice consists of evaluatingpatients who want a recommendation for the drug. He said inan interview that he will not issue such a recommendation unlessa patient has a primary care physician and has a condition seriousenough to require follow-up at least annually. About 80 percentof his patients who use medical cannabis have chronic pain;a smaller number take the drug for muscle spasms, mood disorders,migraine, AIDS, or cancer. "My patients probably average intheir 30s," Lucido said. "I have had probably five patientswho are under 18. These are people with serious illnesses, whereparents were very clear that this would be a good medicationfor them."
Peter A. Rasmussen, an oncologist in Salem, Oregon, said hediscusses the option of trying marijuana with about 1 in 10patients in his practice. "It's not my first choice for anysymptom," he said in an interview. "I only talk about it withpeople if my first-line treatment doesn't work." Rasmussen saidmarijuana has helped stimulate appetite or reduce nausea ina number of his patients with cancer, but others have been distressedby its psychological effects. Some express interest in tryingmarijuana but have difficulty getting the drug. "Most of mypatients who use it, I think, just buy the drug illegally,"he said. "But a lot of my patients, they're older, they don'tknow any kids, they don't hang out on the street. They justdon't know how to get it."
Clinical research on marijuana has been hampered by the factthat the plant, which contains dozens of active substances,is an illegal drug classified as having no legitimate medicaluse. Researchers wishing to do clinical studies must first getgovernment permission and obtain a supply of the drug from theNational Institute on Drug Abuse. In a report published in 1999,an expert committee of the Institute of Medicine expressed concernabout the adverse health effects of smoking marijuana, particularlyon the respiratory tract. The report called for expanded researchon marijuana's active components, known as cannabinoids, includingstudies to explore the chemicals' potential therapeutic effectsand to develop safe, reliable, rapid-onset delivery systems.It also recommended short-term clinical trials of marijuana"in patients with conditions for which there is reasonable expectationof efficacy."2
There has been some progress toward those goals. The Centerfor Medicinal Cannabis Research (CMCR), a three-year researchinitiative established in 1999 by the California state legislature,has funded several placebo-controlled clinical trials of smokedmarijuana to treat neuropathic pain, pain from other causes,and spasticity in multiple sclerosis, and the results are likelyto be available soon. The National Institute on Drug Abuse providedboth the active marijuana and the "placebo," a smokable versionof the drug from which dronabinol (9-tetrahydrocannabinol, orTHC) and certain other active constituents had been removed."It's like decaf coffee or nicotine-free cigarettes, and ittastes the same [as marijuana]," said Igor Grant, a professorof psychiatry at the University of California, San Diego, anddirector of the CMCR. He said additional studies of the wholeplant, as well as its individual components, are still needed."It's still the case that we don't know which components ofbotanical marijuana have beneficial effects, if any," he said.
In an open-label trial, oncologist Donald I. Abrams of the Universityof California, San Francisco, found evidence of marijuana'seffectiveness in the treatment of neuropathic pain among HIV-infectedpatients and has just finished a placebo-controlled trial thathe intends to publish soon. Abrams has also shown that cannabinoidsthat are smoked or taken orally do not adversely affect drugtreatment of HIV,3 and he is completing a study that comparesblood levels of cannabinoids among volunteers who inhaled vaporizedmarijuana with similar levels among volunteers who smoked thedrug. Vaporizers heat the drug to a temperature below that requiredfor combustion, producing vapor that contains the active ingredientswithout the tar or particulates thought to be responsible formost of the drug's adverse effects on the respiratory tract.
Meanwhile, a new marijuana-derived drug is on the Canadian marketand may soon be considered for approval by the Food and DrugAdministration. Sativex, a liquid cannabis extract that is sprayedunder the tongue, was approved in Canada in June for the treatmentof neuropathic pain in multiple sclerosis. Its principal activeingredients are dronabinol and cannabidiol, which are believedto be the primary active components of marijuana. The drug'smanufacturer, GW Pharmaceuticals of Britain, is also testingit for cancer pain, rheumatoid arthritis, postoperative pain,and other indications. Marinol, a synthetic version of dronabinolsupplied in capsules, is approved in the United States for chemotherapy-associatednausea and for anorexia and wasting among patients with AIDS.
On the day the Supreme Court ruling was announced, John Walters,President George W. Bush's "drug czar," issued a statement declaring,"Today's decision marks the end of medical marijuana as a politicalissue. . . . We have a responsibility as a civilized societyto ensure that the medicine Americans receive from their doctorsis effective, safe, and free from the pro-drug politics thatare being promoted in America under the guise of medicine."Nine days later, the House of Representatives, for the thirdyear in a row, defeated a measure that would have preventedthe Justice Department from spending money to prosecute medicalmarijuana cases under federal law.
Nevertheless, marijuana advocates insist that the long-runningbattle between federal and state governments over the medicinaluse of marijuana is far from over. Activists next plan to focuson getting more states to pass laws legalizing medical marijuana,according to Steve Fox, former director of government relationsfor the Marijuana Policy Project.
It is surprising that the Supreme Court decision does not necessarilyspell the end even of Angel Raich's legal case. Raich and anotherCalifornia patient, Diane Monson, who initially sued to preventthe Justice Department from prosecuting them or their suppliers,won a favorable ruling in 2003 from California's Court of Appealsfor the Ninth Circuit. The Supreme Court's reversal now sendstheir case back to that court. Raich said that she, Monson,and their attorneys will ask the appeals court judges to considerother legal arguments, such as whether prosecuting patientswho use marijuana to relieve pain violates their right to dueprocess of law. "Previous decisions have established that thereis a fundamental right to preserve one's life and avoid needlesspain and suffering," explained Boston University's Randy Barnett,a constitutional lawyer who argued the women's case before theSupreme Court. "Federal restriction on accessibility to medicalcannabis is an infringement" on that right, he said.
Raich vowed to continue her personal battle. "I'm stubborn asheck, so I don't plan to give it up that easily. I plan to fightuntil I can't fight anymore," she said.
Dr. Okie is a contributing editor of the Journal.
An interview with Dr. Donald Abrams can be heard at www.nejm.org.
- Finz S. 19 Named in medicinal pot indictment. San Francisco Chronicle. June 24, 2005:B4.
- Joy JE, Watson SJ, Benson JA, eds. Marijuana and medicine: assessing the science base. Washington, D.C.: National Academy Press, 1999.
- Abrams DI, Hilton JF, Leiser RJ, et al. Short-term effects of cannabinoids in patients with HIV-1 infection: a randomized, placebo-controlled clinical trial. Ann Intern Med 2003;139:258-266. [Abstract/Full Text]