Field Report

Medical Marijuana:
Beyond the War on Drugs

by Sandy Shaw

By meddling in state marijuana initiatives, the Feds have opened
the door to a lawsuit challenging the very basis of their authority.

In his article "Medics in the War on Drugs" (March 1997), Thomas Szasz correctly characterizes the Arizona and California medical marijuana initiatives as "replacing legal sanctions with medical tutelage."  And he rightly observes that too many critics of the War on Drugs "refuse to recognize that their adversaries are priests waging a holy war on Satanic chemicals."  But the medical marijuana initiatives are nevertheless a step forward - for if a substance is recognized as helpful to certain desperately ill people, it is likely that many will no longer see it as satanic, thereby increasing the potential for outright legalization.  Even more important, by attempting to regulate intrastate use of marijuana, the federal government has opened the door to a wide-ranging lawsuit challenging the very basis of its authority.

Free Speech, Federalism, and the DEA

     Dr. Szasz writes that "[p]hysicians complain of being deprived of their right to free speech.  It won't work" - because, he argues, physicians could still be punished by revoking their "prescription privileges" for substances controlled by the DEA.  Certainly this is the government's plan; the Department of Justice's current position is that "a practitioner's action of recommending or prescribing Schedule I controlled substances [i.e., drugs that are supposedly addictive and have no medical use] is not consistent with the 'public interest' ... and will lead to administrative action by the DEA to revoke the practitioner's registration [the right to prescribe controlled substances]."  But for the federal government to punish doctors (or anybody else) for the content of their speech is plainly unconstitutional, as numerous Supreme Court decisions have made clear (the few exceptions include "fighting words" and "obscenity").

     Moreover, the First Amendment, as I have previously noted in these pages ("My War with the FDA," January 1997), is on a roll before the U.S. Supreme Court.  In the December 1996 ABA Journal, Professor Burt Neuborne of the New York University School of Law warned liberals worried by increasing judicial protection of so-called "commercial speech" that the current Supreme Court is "the fiercest defender of the First Amendment in the Court's history."  Medical marijuana initiatives thus offer a tremendous opportunity to strike a blow for freedom - freedom that goes far beyond the issue of marijuana as a medicine and far beyond the issue of freedom of speech.

Taking It to the Courts

     In February, Durk Pearson and I read that a complaint had been filed on January 14, 1997 in the United States District Court for the Northern District of California: Dr. Marcus Conant, et al. v. Barry E. McCaffrey, Thomas A. Constantine (Administrator, DEA), Janet Reno, Donna Shalala.  The complaint, filed by lawyers for several doctors and by a lawyer for the ACLU, argues that the federal government violated the free speech rights of California and Arizona doctors by threatening them with criminal charges if they recommended medical marijuana to their patients.

     Unfortunately, it turned out that Dr. Conant's complaint raises only one constitutional issue: freedom of speech.  The complaint quotes the First Amendment ("Congress shall make no law ... abridging the freedom of speech or of the press") and clearly explains how the federal government violated the free speech rights of doctors.  And it shows how patients would be harmed by loss of access to their doctors' knowledge.  Even if the suit leads the courts to reaffirm the freedom of speech of doctors, however, patients using medical marijuana would still be at risk of federal prosecution.  Furthermore, the suit didn't even mention important issues such as federalism (the constitutional limits on federal control over intrastate activities), the jurisdictional limits of federal authority under the Interstate Commerce Clause, and the Ninth and Tenth Amendments.

     Federalism is important here because state sovereignty is the basis for many limitations on the power of the federal government.  Since the 193Os, when a series of U.S. Supreme Court decisions vastly expanded federal power over the states, the courts have consistently favored very loose constructions of the articles of the Constitution that describe federal powers.  But in U.S. v. Lopez (1995), the U.S. Supreme Court ruled that the Interstate Commerce Clause did not authorize a federal law banning the possession of guns within 900 feet of a school - since such activity was not interstate commerce - and struck down the law.

     This was the first time since FDR that the Supreme Court had set any real limit to the feds' authority under the rationale of "regulating interstate commerce"; previously, even activities such as a farmer's growing grain to feed to his own livestock had been defined as "interstate commerce (Wickard v. Filburn, 1942).  Moreover, Justice Clarence Thomas's concurring opinion virtually invites new challenges to federal authority under the Commerce Clause.  Even Justice Stephen Breyer, who was in the dissenting minority in Lopez, agreed that the federal government does not have a general police power and cannot regulate everything - that there are limits to the reach of the Commerce Clause.  (When asked to give an example, however, Breyer couldn't think of one.) Medical marijuana is a perfect issue for challenging federal authority.

     Hoping to broaden the scope of the original complaint, Durk Pearson and I had our attorney, Jonathan Emord, ask the plaintiffs' attorneys if we could file a friend-of-the-court brief in support of it.  Although they agreed to allow us to do so, they refused to amend the complaint itself to bring up the all-important issue of federalism.  Shortly thereafter, the federal government suddenly agreed that doctors would be allowed to discuss (but not recommend) medical marijuana without fear of federal prosecution.  Then, on April 11, Northern California District Court Judge Fern M. Smith issued a temporary restraining order enjoining McCaffrey, Reno, and Shalala "from prosecuting doctors or revoking their prescription licenses" for discussing marijuana with their "bona fide" patients or recommending it to them.

     These, to be sure, are all positive developments - but they do nothing to challenge federal authority at its root.  So we decided not to file a brief in the Conant case.  Instead, along with Julian Whitaker, M.D., and the Life Extension Foundation (co-plaintiffs who are helping fund the suit with us and a friend who wishes to remain anonymous), we filed suit on March 6 in the U.S. District Court for the District of Columbia, which has jurisdiction over the federal government everywhere in the U.S.  (The full text of the complaint is available at http://www.netcom.com/~zeno7/durksand.html.) Unlike the California suit, ours argues on behalf of doctors and patients in four states in which medical marijuana is legal: Virginia, Connecticut, California, and Arizona.  And in contrast to Conant, our suit does not depend upon establishing the medical efficacy of marijuana.  We are challenging the very basis of federal authority to regulate intrastate use of a medicine - which in this case is marijuana, but could be any medicine.  Previous decisions provide solid grounds for hope here: for example, in the early 1980s, the U.S. District Court In Texas ruled that the feds could not prevent Dr. Stanislaw Burzynski from using "neo-plastons" to treat cancer, so long as he did not ship neoplastons outside of Texas.

     However, it is worth noting that doctors generally do not question the efficacy of marijuana as a treatment for certain conditions - most notably for intractable pain and nausea caused by chemotherapy for cancer or AIDS.  The widespread acceptance of marijuana for this purpose is reflected, for example, in an article by Jerome P. Kassirer, M.D., that appeared in the New England Journal of Medicine (January 30, 1997).  Dr. Kassirer, the journal's editor, writes that "what really counts for a therapy with this kind of [high] safety margin is whether a seriously ill patient feels relief as a result of the intervention, not whether a controlled trial 'proves' its efficacy....  Thousands of patients ... report they have obtained ... relief ... so striking that some patients and their families have been willing to risk a jail term to obtain or grow marijuana."  He further argues that the government should change marijuana's status from Schedule 1 to Schedule 2, which designates a drug "with some accepted medical use."  And he notes that "it is hypocritical to forbid physicians to prescribe marijuana while permitting them to use morphine ... to relieve extreme ... pain."

     A final point.  Most patients suffering from chronic nausea cannot afford the $600 to $1,200 per day charged for Ondansetron® or the hundreds of dollars per day cost of Marinol®, two synthetic treatments for nausea.  Marijuana, by contrast, brings relief for only a few dollars per day.  And as Dr. Kassirer notes, it is difficult to correctly adjust the dose of Marinol, which includes synthetic THC (the main active ingredient in marijuana); if you use too much you are zonked out of your mind, but if you use too little you don't get adequate relief.  The federal government is thus in the odd position of advocating use of a drug that is less effective and often far more intoxicating than marijuana.

The Empire Strikes Back

     Besides challenging the feds on free speech grounds, our suit questions the rest of their plan as well - of which pulling "prescription privileges" is just the beginning:

     1) The feds also claim the authority to "exclude specified individuals or entities from participation in the Medicare and Medicaid programs";

     2) They plan to have the Department of the Treasury "recommend that the IRS issue a revenue ruling, to the extent permissible under existing law, that would deny a medical expense deduction for amounts expended for illegal operations or treatments";

     3) The new initiatives will not be allowed to affect the Department of Housing and Urban Development's aggressive eviction policy for users of proscribed drugs, even if used as medicine under protection of state law;

     4) The federal government plans to have the Department of Education "develop a model policy to confront 'medical marijuana' use in schools";

     5) This is all supposedly justified on the grounds that "marijuana, as a Schedule I drug, has 'high potential for abuse' and has 'no currently accepted medical use in treatment in the United States.'"

     Fortunately, the federal government does not have constitutional authority to do any of these things - and the present Supreme Court is, we think, ready to agree.

(Note: This article appeared in the July 1997 issue of LIBERTY, Volume 10, No. 6, pp. 35-36, 38, and is titled "Medical Marijuana: Beyond the War on Drugs."  Back issues of LIBERTY are available at http://www.LibertySoft.com/liberty/  Send letters to LIBERTY, P.O. Box 1181, Port Townsend, WA 98368 USA)