Medical Marijuana Law – Nation-Wide Legislation

—BILLS—
FEDERAL: H.R.5843
Kansas: SB0556
Tennessee: SB0641
Missouri: HB1830, HB1138
New Jersey: A804
California: AB2743, SB529, AB2279, AB684, SB1098, SJR20, AB1582
Minnesota: HF0655
Illinois: HB5499

Overview
The main issue involved in the use of marijuana for medical reasons can be summed up as follows: Do the medical benefits of properly prescribed marijuana to certain patients outweigh the medical risks thereof, and outweigh society’s legal, moral, ethical, religious and public health concerns? The U.S. Supreme Court found that it is not under the landmark case of Gonzales vs. Reich (below).

Marijuana has been used as an agent for medicinal purposes and for achieving euphoria since ancient times; it was described in a Chinese medical compendium traditionally considered to date from 2737 B.C. (5000 years ago). For most of human history, marijuana has been completely legal. It’s not a recently discovered plant, nor is illegality a long-standing law. Marijuana has been illegal for less than 1% of the time that it’s been in use.

The use of marijuana has been the source of criticism, racism and ridicule over the years, initiating an all out war against the substance by Uncle Sam. For instance Harry J. Anslinger, former Director of the Federal Bureau of Narcotics in the 1930’s, made the following “observations”: “Marijuana smokers in the US are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others”; “Marijuana is an addictive drug which produces in its user’s insanity, criminality, and death”; “Marijuana is the most violence-causing drug in the history of mankind.” And “You smoke a joint and you’re likely to kill your brother; Marijuana makes fiends of boys in thirty days”. The term “killer weed” was formerly used to describe marijuana, and was the title of a motion picture in the 1930’s. These and similar attitudes exist even today and act to form a societal prejudice against any use of the “drug”, including for beneficial medical purposes.

Medical use of marijuana has undergone many medically supervised clinical trials and it is generally accepted that treatment including marijuana has some positive medical value. The counter medical argument is that, while concedingly medically beneficial, too little is known about the possible negative effects of the over 400 chemicals contained in marijuana At this point that the trend would be to include marijuana in the treatment of some conditions including appetite stimulation in AIDS and cancer patients, relief from nausea and vomiting from chemotherapy, pain relief, and increase in motor activity in cases of M.S., paraplegia, spasticity, and seizure disorders. It also lowers intraocular pressure (IOP) in glaucoma. More study is needed.

Four main issues comprise the debate on medical marijuana: (1) its role as a significant drug of abuse and the reluctance of policy makers to dissociate the potential harmful effects of recreational marijuana use from its potential therapeutic effects; (2) the wisdom of burning and inhaling the combustion products of a dried plant product as a valid therapeutic agent; (3) the view that smoked marijuana is not a unique therapeutic substance but rather represents an alternate, but more toxic, delivery vehicle for the active ingredient THC; and (4) the value of analyzing smoked marijuana’s potential medical use in the traditional manner of risk versus benefit in individual patients. The American Medical Association in its June 2001 report “concluded that marijuana should remain illegal but that further research should be done to verify its medical benefits and side effects.

For the most part, mainline religious denominations support the use of medical marijuana including The Presbyterian Church (USA), the United Methodist Church, Episcopal Church, United Church of Christ, Union for Reform Judaism, Progressive National Baptist Convention, and the Unitarian Universalist Association. Some or most of their collective views stem from the religious/moral duty to care for, and be compassionate to, the sick. “Legislators who give lip service to ‘moral values’ had better be consistent on the medical marijuana issue,” said Charles Thomas, executive director of the Interfaith Drug Policy Initiative. The Presbyterian Church (USA) joins six other major denominations explicitly supporting medical marijuana, while no denominations’ governing bodies have ever taken an official position against it .

The Courts have recognized “medical necessity” a valid defense only in cases involving religious organizations. The court rejected that defense in this case. The Supreme Court did support religious rights regarding drugs in a 2006 case. There, U.S. Supreme Court ruled unanimously that the Religious Freedom Restoration Act of 1993 was constitutional and applied to the DEA. The DEA was required to return Schedule I drugs and related materials to the members of the UDV church and was required to meet the conditions of the Act regarding religious defense.

—State initiatives concerning medical marijuana—

The Federal law making marijuana illegal is called Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, Code of Federal Regulations or CFR. The law makes it unlawful to manufacture, distribute, dispense, or possess Schedule I drugs [marijuana]. States have since enacted laws making it legal to dispense, cultivate and/or use marijuana for medical purposes. Twelve states, including California, Alaska, Colorado, Nevada, Oregon, Washington, Hawaii, Maine, Montana, Rhode Island, Arizona and Vermont have enacted by statute or referendum the legalization for research and use of marijuana for medicinal purposes only fifteen states have never had a positive medical marijuana law. Ten states, plus the District of Columbia, have symbolic medical marijuana laws, laws that support medical marijuana but do not provide patients with legal protection under state law.

In September 1999, the Ninth U.S. Circuit Court of Appeals ruled that “medical necessity” is a valid defense against federal marijuana distribution charges, provided the distributor can prove that the patients it serves are seriously ill, face imminent harm without marijuana, and have no effective legal alternatives. The case was appealed to the U.S. Supreme Court (hereafter Court).

—The United States Supreme Court Rules

Despite state legalization acts the United States Supreme Court (hereafter Court) overruled a decision by the 9th Circuit Court of Appeals that marijuana should be legalized for medical purposes. [It may be noted here that the 9th Circuit Court and the US Supreme Court have been at odds for many years and the 9th Circuit is overruled by the Supreme Court more than any other]. The Supreme Court held that under the Commerce Clause of the U.S. Constitution, Federal criminalization of the medical use of marijuana could be enforced by the Federal government irrespective of state law to the contrary (state laws were not repealed, only that Federal agents could arrest and prosecute those who distributed and/or used marijuana including for medicinal purposes; it was not unlawful for physicians to prescribe marijuana).

In its decision in Raich the Court framed the legal issue at the outset: “The question presented in this case is whether the power vested in Congress by Article I, §8, of the Constitution includes the power to prohibit the local cultivation and use of marijuana in compliance with California law”. This is called “Commerce Clause” of the Constitution This Clause has been used (many say over-used) throughout the Court’s history to regulate anything having to do with interstate (state to state) commerce. The test as to when the Clause allows the Court (Federal government) to regulate some aspect of commerce has become increasingly more liberal over the last 200 years to the point that the Court can invoke the clause just about any time it wants to expand the Federal government’s power to regulate.

Gonzales v Raich was a California case. The Court noted that California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996. The proposition was designed to ensure that “seriously ill” residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps towards ensuring the safe and affordable distribution of the drug to patients in need.

The facts before the Court were:
Plaintiffs Angel Raich and Diane Monson were California residents who suffered from a variety of serious medical conditions and had sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents’ conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors’ recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.

Plaintiff Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as “John Does” (anonymous parties to the suit) to provide her with locally grown marijuana at no charge. These caregivers also process the cannabis into hashish and Raich herself processes some of the marijuana into oils, balms, and foods for consumption.

On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.

Plaintiffs thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the Federal Controlled Substances Act (CSA) in that it prevented them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.

The Commerce Clause emerged as the Framer’s response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887.

Cases during this “new era” identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Third, Congress has the power to regulate activities that substantially affect interstate commerce. The case here was decided pursuant to the third category.

The plaintiffs raised three main objections to Congress exercising its power under the facts of this case. First they argued that the fact that marijuana used “for personal medical purposes on the advice of a physician” can itself serve as a distinguishing factor exempting marijuana from Federal regulation. The Court countered that the CSA designated marijuana as contraband for any purpose by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses (apparently without any government initiated studies).

“Second, the plaintiffs’ argued that limiting the ability of a state to pass laws legalizing only marijuana use to marijuana possession and cultivation should put the state’s law Federal congressional reach. However, the Court found that the “Supremacy Clause” in the constitution unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail [called preemption]. It said that it is beyond argument that federal power over commerce is “‘superior to that of the States to provide for the welfare or necessities of their inhabitants, however legitimate or dire those necessities may be”.

Plaintiffs nonetheless contended that their activities were not “an essential part of a larger regulatory scheme” because they had been “isolated by the State of California, and are policed by the State of California,” and thus remain “entirely separated from the market” (commerce clause). The Court responded: “The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition and, more importantly, one that Congress could have rationally rejected”.

The Court also said that the effect on interstate commerce would be substantial if the California law was to remain. It would allow illegal activity to occur by transporting marijuana across state lines for both legal and illegal purposes.

—Conclusion—
Basically, the Court said that as long as Congress’ inclusion of the medical use of marijuana in its list of banned drugs was “rational”, the Federal law preempted state law to the contrary. In other words, it seems the centralized Federal government is better able to regulate the affairs of all 50 states by Thus, by the Court’s ruling, in California the marijuana distribution centers are legal under state law but illegal under Federal law. Many still operate but many have been raided and shut down by the Drug Enforcement Agency (DEA).

The court’s decision makes the Federal government justified in sweeping and broad criminalization statutes, trumping whatever the people of the state decide is more beneficial for them. Although the Supremacy of Federal law over state law has long ago been established, there seems a determined effort in cases over the years to protect this power rather than relinquish it. If those who are subject to the criminalizing law were arch criminals themselves that would be one thing. However, most are otherwise and many times providing their services for the bettering of medical care (and of course their pocketbooks as is any capitalistic business). Although medical research has not conclusively proven the medical use of marijuana to be more beneficial than conventional drug therapies, there is little direct evidence that it is not helpful in many ways or that that its harmful effects out-weigh its benefits; or that its benefits should not be the subject of more clinical testing. Where the price of some drug therapies exceed the price of marijuana by multiples, and with the economic outcry about increasing healthcare costs (substantially influenced by profits of drug companies) why not consider the naturally occurring medicinal plants, such as marijuana, as an alternative treatment for those whom conventional therapies are ineffective.