Medical Marijuana and the Supreme Court
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Medical Marijuana and the Supreme Court

Medical Cannabis and the Supreme Court, is it legal or illegal. Can doctors prescribe it?

Medical Marijuana and the Supreme Court

Medical marijuana has become a pressing issue with doctors and their patients alike. Our country, the United States of America, has yet to federally legalize this method of treatment for doctors and their patients. The fear of legalizing this plant for medicinal purposes is ignorantly enmeshed with the fear of what people call the legalization of drugs in America. Is it right or wrong to legalize medical cannabis for use by doctor’s patients as prescribed or recommended to them?

  • “Fourteen states — California, Alaska, Oregon, Washington, Maine, Hawaii, Colorado, Nevada, Vermont, Montana, Rhode Island, New Mexico, Michigan, and most recently, New Jersey — have passed laws eliminating criminal penalties for using marijuana for medical purposes, and at least a dozen others are considering such legislation.”N Engl J Med 2010; 362:1453-1457 

The New England Journal of Medicine wrote two worthy articles, the above quoted from April 22, 2010, and the other on August 18, 2005, with regards to medical marijuana and its legal status for use. The author of this piece has had an intimate relationship with the drug laws, terminally ill patients, and this allegedly horrific and dangerous substance that we call marijuana. During his tenure with the federal government, he seized thousands of pounds of marijuana, impounded vehicles of all types for federal lien, and sent countless “drug runners” to prison for their crimes of smuggling marijuana into the United States. The author left the stresses and confines of the federal government to seek out a closer relationship with his sons and he began a career in fitness with the idea of helping people feel good instead of taking away their liberties. Ultimately, he became an exercise specialist and worked thousands of hours one-on-one with terminally ill and gravely ill patients for strength conditioning and their overall health. This background gives way to his unique perspective with regards to medical cannabis or marijuana, whatever you wish to call it.

The federal law is clear and specific. Marijuana (any way you term it) is a controlled substance by the U.S.A. as of the day of this writing January 25, 2011. States however, as mentioned in the above quote, have passed laws that remove criminal implication of those that use the substance medicinally. So there are two forces at battle: One is the almighty federal government that has final legal say, and the other is the state governments that create the many crooked lines on our maps.

What this means to the ordinary citizen is that if you are a medical patient, you can be arrested and your medicine seized and disposed of. The law officer would be okay to enforce the federal law regardless of the state’s laws. You, the patient, would have to be delayed in your day at least, and face a court hearing and jail at worst. Due to this conflict of state and federal law your hearing in court, if it went that far, would be irritating at least and costly at worst.

The fears of legalizing cannabis in the United States are mostly obvious. People are worried that children and irresponsible adults will be high and in the streets causing accidents, creating robberies, and becoming a more social inept society as a whole. Surely people will be dancing in the streets and rushing the corner market for more after they run out a few hours after smoking. Wait, I’m thinking about alcohol and how society has general acceptance of liquor and its effects on people. I can see how people would be disturbed by legalizing marijuana, however. The lines at the corner market might be increased for snacks and cause a delay in payment for gas or other purchases.

Cocaine, Meth, heroin or opium, yes I get it. They are dangerous and illegal, as they should be. Alcohol, I could see a lawyer citing the number of alcohol related deaths and injuries and filing a petition to illegalize it. I have a hard time seeing a lawyer comparing alcohol and marijuana and the known scientific effects and statistics of each and him winning an argument stating that alcohol is a better legal substance than marijuana with regards to its effects on society as a whole. Sorry, alcohol loses on this judge’s decision tally every time.

The New England Journal of Medicine reports,

  • The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I drug — one with a high potential for abuse and “no currently accepted medical use” — and criminalizes the acts of prescribing, dispensing, and possessing marijuana for any purpose. 
  • Medical experts have also taken a fresh look at the evidence regarding the therapeutic use of marijuana,2,3 and the American Medical Association (AMA) recently adopted a resolution urging review of marijuana as a Schedule I controlled substance, noting it would support rescheduling if doing so would facilitate research and development of cannabinoid-based medicine. Criticizing the patchwork of state laws as inadequate to establish clinical standards for marijuana use, the AMA has joined the Institute of Medicine, the American College of Physicians, and patient advocates in calling for changes in federal drug-enforcement policies to establish evidence-based practices in this area. 
  • In October 2009, the Department of Justice issued a memorandum to U.S. Attorneys stating that federal resources should not be used to prosecute persons whose actions comply with their states' laws permitting medical use of marijuana. This change in the Justice Department's prosecutorial stance paved the way for states to implement new medical-marijuana laws, and states are now attempting to design laws that balance concerns about providing access for patients who can benefit from the drug with concerns about its abuse and diversion. 
  • All the state laws allow patients to use and possess small quantities of marijuana for medical purposes without being subject to state criminal penalties. N Engl J Med 2010; 362:1453-1457

So in other words, the federal law says you are not allowed to possess, sell, or use marijuana in any state in the union. You can be arrested legally. Yet, if you are in a state that has modified its law and you are a patient under a doctor’s care that is following all of that state’s requirements with regards to your possession, selling or use of marijuana, you will not be prosecuted.


Oncologists must be glad to be able to make recommendations to their patients in those states where they are legally able to. “Peter A. Rasmussen, an oncologist in Salem, Oregon, said he discusses the option of trying marijuana with about 1 in 10 patients in his practice. “It's not my first choice for any symptom,” he said in an interview. “I only talk about it with people if my first-line treatment doesn't work.” Rasmussen said marijuana has helped stimulate appetite or reduce nausea in a number of his patients with cancer, but others have been distressed by its psychological effects. Some express interest in trying marijuana but have difficulty getting the drug. “Most of my patients who use it, I think, just buy the drug illegally,” he said. “But a lot of my patients, they're older, they don't know any kids, they don't hang out on the street. They just don't know how to get it.” NEJM

The New England Journal of Medicine concluded its latest study with, 

  • “Reliance on state laws as the basis for access to medical marijuana also leaves patients and physicians in a precarious legal position. Although the current Justice Department may not prosecute patients if they use marijuana in a manner consistent with their states' laws, the federal law remains unchanged, and future administrations could return to previous enforcement practices.” N Engl J Med 2010; 362:1453-1457

In effect, the states are listening to their inhabitants and changing their positions on laws that they feel need to be modified due to what they are experiencing in their region. The Supreme Court is in a quarantined location of Washington D.C. and is stuck with the institutional magnifying glass of reviewing legalize while attempting to remain fair and unbiased. It’s interesting to follow the decisions and reasoning by the justices in any decision, not just this one.

If the trend of the last twenty years continues all of the states will have adopted a medical marijuana acceptance law within the next ten years with exclusion to only those few extremely conservative states. With the change of public opinion comes slow the change of federal law in our country. Current trends are changing significantly as can be witnessed by our selection of the country’s first black president. With such social progress we will certainly see the medical marijuana debate to continue on into the years ahead with increased support for their initiative.

In its 2005 article, The New England Journal of Medicine reported, “In the Supreme Court case Gonzales v. Raich, the justices ruled 6 to 3 that the federal government has the power to arrest and prosecute patients and their suppliers even if the marijuana use is permitted under state law, because of its authority under the federal Controlled Substances Act to regulate interstate commerce in illegal drugs.” It’s interesting to note that even the Supreme Court justices didn’t have a unanimous decision. Even the court’s highest justices are not convinced.

Finally, a word about experience and life in contrast to hard law: Cancer is a beast. Of all the medicines that can be used for cancer and of all the situations of which human health can decline, cancer is known to many and for many different individual, yet similar, circumstances. My mother died from cancer. Some of my long term clients have died from cancer. I’ve had family and friends battle the beast first hand. I’ve been first hand witness to strife and pain by those stricken with cancer. I care not to be present in the arena of pain when it could have been easily alleviated by this debated substance for the benefit of its user. In hindsight, I know of many clients that probably could have benefited from a substance like medical cannabis due to their physical pain that was intolerable. But, due to their stringent morality and belief in our legal system, they never would have deviated from their beliefs, and didn’t until their untimely exit. Had the U.S.A. had laws that allowed this substance to be a recognized and accepted practice for pain alleviation at that time for them, some human physical relief would have surely provided a source of needed relief for at least a few of those I knew. Instead, many endured the consistent individual internal emotional and physical torture aided only by pills and chemotherapy. Surely we can do better than that as a society. Our loved ones deserved that option, and deserve it. Perhaps we will face that gate ourselves one day. One never knows.

This is a highly debated subject and each person gets to have their say with each and every ballot and vote. In California, the last debated modification in law regarding medical cannabis was to legalize marijuana to regulate and tax it. Proposition 19 in November of 2010 was defeated with the votes 4,643,592 (46.5%) approving and with 5,333,230 (53.5%) with a no vote. In a generic sense, this says that almost one in two California voters approves of the use of marijuana for medical purposes. That is significant. Especially if you imagine the amount of the medical voting patients that didn’t make it to the polls due to their medicine’s effects (no humor intended). This debate will not disappear and it will not just go away. I would relate it to gay marriage, a woman’s right to vote, racism, and the right to bear arms with regards to its political fire. Some of those atrocities have already been overturned or affirmed in our countries laws. The others will remain hot on the presses until the law catches up with the reality of today’s needs.

© Dwayne Ivey - January 2011

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Comments (1)

A brilliant and well researched article which has a topic which has long been debated. There are many fore's and just as many againsts... I wonder if there will ever be a solution....?