Supreme Court Leaves Medical Marijuana Out in the Cold

From the archives:

(19 January 2006) Which of the following does not belong?

(a) abortion

(b) medical marijuana

(c) physician-assisted suicide

Although all three are contentious and litigious medical issues, the answer seems to be choice (b), medical marijuana, according to the U.S. Supreme Court.

On January 17, the Supreme Court ruled 6-3 in Gonzales v. Oregon that the U.S. Attorney General did not have the authority to criminalize the prescription of lethal doses of drugs, currently allowed under Oregon's Death with Dignity Act, originally approved in 1994. The act, approved again in a second referendum in 1997, allows for physician-assisted suicide in cases where the patient is an adult, not expected to live longer than six months due to terminal illness, and is deemed competent to make decisions on his or her own care. In addition to these safeguards, the patient must also make multiple verbal and written requests for the prescription, be evaluated by a second physician, be informed of alternatives to physician-assisted suicide, and must inform his or her next of kin.

For advocates of privacy rights and especially those against undue government interference in health and medicine, this ruling is great news. Through the end of 2004, only 208 people had used the Oregon law to end their lives, meaning the law has not hurt the state in any way but has let a few terminally ill patients end their suffering. Despite the victory, this optimism should be tempered with some caution as well.

In its analysis on the ruling, The New York Times warns against over interpreting the ruling, and rightly so. The ruling only determined that Attorney General John Ashcroft, the original plaintiff on the case, had overstepped his authority, rejecting his argument that the Controlled Substances Act gave him jurisdiction over the case. Although this case may open the door to similar death with dignity laws in other states, it will not open a floodgate. The Supreme Court did not explicitly rule on the legality of physician-assisted suicide, leaving it in legal limbo for the time being, and Oregon remains the only state to have legalized physician-assisted suicide, with voters yet to approve such a measure in any other state.

It was in its original coverage of this story, though, that The New York Times almost caught the more interesting significance of this ruling:

Chief Justice Roberts did not write a dissenting opinion of his own, instead signing a dissent written by Justice Antonin Scalia. Justice Clarence Thomas also wrote a dissenting opinion, in which he observed that it was "perplexing to say the least" to find the court interpreting federal drug law narrowly in this instance when only months ago it had upheld broad federal authority to prevent states from authorizing the use of marijuana for medical purposes.

The New York Times left it at that, but that one quote stood out to me as possibly the most important in the article (and not just because it may be the only time you'll see me openly agree with Clarence Thomas). The question of "Why not?" regarding medical marijuana has two sides: a legal side and a scientific side. In this post I'll briefly touch on both of these, but I'll return to the scientific question in much more detail in a later post.

The science behind medical marijuana is compelling but still inconclusive in many areas. Marijuana can improve the quality of life some patients, primarily by relieving pain and discomfort, particularly in patients undergoing chemotherapy treatment for cancer. Although marijuana has also received a large amount of attention in its potential for treating certain aspects of multiple sclerosis, the research there is much less conclusive. When it comes to the side effects of marijuana, much less is known, and the common knowledge in this area is based much more on anti-drug propaganda than science. Smoking of any type can be linked to lung ailments and marijuana may be linked to psychosis, although addiction to marijuana is not a major concern. While these side effects, if they exist, take a long time to develop, the short term effects of marijuana are relatively benign. At the very least, medical marijuana would undoubtedly be appropriate for terminally ill patients, and possibly for adults suffering from other conditions as well.

An alternative to marijuana could be marijuana-based cannabinoid drugs, and a search of the recent literature reveals that this is a promising area of research. Although the safety of drugs developed in this way would probably be greater than pure marijuana, they would surely be much more expensive, especially compared to a patient growing his or her own marijuana. In addition, with the U.S. Food and Drug Administration basically giving "herbal supplements" a free license to make unsubstantiated and wild claims in the U.S. by the Food and Drug Administration, the strict regulation of marijuana seems inconsistent. The U.S. would need to strengthen its regulation of these products and relax its regulations of marijuana to erase this double standard.

The legal environment surrounding medical marijuana is just as interesting, and although the case for marijuana in this arena seems to be more clearly laid out, the U.S. government appears to follow a double standard here as well. On June 5, 2005, in its ruling on Gonzales v. Raich, the Supreme Court upheld the federal government's assertion that the Controlled Substances Act allowed it to regulate medical marijuana and not exceed its powers under the Commerce Clause of the U.S. Constitution. This effectively struck down California's Proposition 215, which was passed in 1996. This was an odd ruling, since Angel Raich grew her own marijuana (not participating in any interstate commerce) and demonstrated a compelling need for medical marijuana. Consistent with his views quoted above, Justice Thomas wrote a dissenting opinion in the 6-3 ruling.

Although abortion is not related to the Controlled Substance Act, it is another example where the federal government has taken the preferred hands-off approach to medicine. Despite constant attacks on this fundamental right, the government has for the most part recognized that the decision to have an abortion is a medical one, between a patient and her doctor. Interestingly, the Supreme Court just handed down a ruling on abortion that was unexceptional except in maintaining the current state of the law. The ruling, announced on January 18, was not a major victory for either side of the abortion debate, because although the Court ruled that a lower court could not strike down a restrictive New Hampshire abortion law--one which requires parental notification for minors seeking an abortion--it also ruled that the court could strike down parts of the law for not including health and safety exceptions to the law.

Although much more scientific research will need to be conducted to determine when the use of medical marijuana is most appropriate, its use in some cases, namely for terminally ill patients, already seems justified. In the meantime, while the legal environment seems promising for its acceptance, various double standards show that the U.S. government will also have to change its attitude or will be unlikely to accept medical marijuana, even in the face of compelling scientific evidence. While I admit that there are some trained physicians in the federal government, I can think of one, at least, who has shown himself completely inept at diagnosing patients from afar (Senator Bill Frist on the condition of Terri Schiavo), so at this point, we're probably better off letting the doctors meeting patients face-to-face make the medical decisions.