Powerful Court Quietly Takes Marijuana Case That Could Shatter Federal Prohibition Laws
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“It’s just not as effective,” says William Brent, a 52-year-old California man who is a plaintiff in the ASA suit. Brent, who suffers from seizures, depression and chronic pain cause by bone abnormalities, has sought relief from prescription painkillers, muscle relaxers, antiseizure, antianxiety, and antinausea drugs—but says “cannabis is the one that works best for me.”
Donald Abrams, director of clinical programs at San Francisco General Hospital—where he worked in the nation’s first AIDS clinic—finds it “a bit ironic” that cannabis is in Schedule I, completely illegal, when its main active ingredient is in Schedule III.
The DEA rejected two previous petitions to reclassify cannabis. The National Organization for the Reform of Marijuana Laws first challenged the Schedule I classification in 1972, on the grounds that marijuana had valid medical use. The Alliance for Cannabis Therapeutics, a medical-marijuana group founded by pioneering patient Robert Randall, joined later.
It took years of litigation to get the DEA to consider that petition. When it did, in 1988, DEA administrative law judge Francis Young recommended the change, writing, in a quote often cited by medical-cannabis advocates, that marijuana was “the safest therapeutically active subject known to man.” The DEA rejected his recommendation, and in 1994 the D.C. Circuit upheld that decision.
In 1995, cannabis-policy researcher Jon Gettman and High Times magazine filed another petition, arguing that marijuana did not belong in Schedule I because it did not have a high potential for abuse. The DEA rejected it in 2001, and a federal appeals court ruled a year later that Gettman and High Times did not have legal standing to contest that decision.
This time will be different, advocates say. Scientific knowledge of marijuana has advanced dramatically in the past 20 years. The brain’s naturally occurring cannabinoids were first identified in 1992.
“There are numerous peer-reviewed studies establishing that marijuana is effective in treating AIDS wasting syndrome, muscle spasticity, emesis, appetite loss, negative side effects of chemotherapy, and chronic pain… The government, however, simply ignores these well-controlled studies,” ASA’s appeal brief says. “It is only by failing to apply the appropriate standards and make the required comparisons that the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine and opium.”
The federal government acknowledged the medical potential of cannabis in 1999, Abrams notes, in the Institute of Medicine’s “Marijuana and Medicine: Assessing the Science Base” report. That report said cannabis-based drugs held promise for treating pain, nausea from chemotherapy, and the “wasting syndrome” from AIDS and cancer, and that “there are patients with debilitating symptoms for whom smoked marijuana might provide relief.” It also said that marijuana had a very low addiction potential, comparable to that of caffeine, Abrams adds.
Because the petition was filed in 2002, however, the court may decide not to consider more recent research. This weakens the case, says Elford—but it also denies the DEA an excuse to delay its response by saying it has to evaluate that research.
The plaintiffs will also have to overcome the argument that smoking a drug is not legitimate medicine. The DEA and prohibitionists hammer this point, and many, if not most, doctors, don’t like the idea of sick people inhaling smoke. “We see little future in smoked marijuana as a medicine,” IOM principal investigator Dr. John A. Benson said in 1999, although the report conceded that it could help in extreme cases.
Some medicines are inhaled, Abrams responds, such as those for asthma, and vaporization, in which the cannabis is heated so that the THC can be inhaled without smoke, decreases the health risk. He also cites research by Donald Tashkin of the University of California at Los Angeles, who in a 2006 study found that even people who had smoked more than 20,000 joints in their lives did not have a higher rate of lung cancer. The main respiratory risk for heavy marijuana smokers Tashkin found was bronchitis.