Prescription: Drugs

When California and Arizona overwhelmingly passed initiatives allowing the medical use of marijuana, drug warriors were apoplectic. What do these measures mean?

Nick Gillespie from the February 1997 issue

(Page 2 of 2)

While the laws are narrowly tailored, they nonetheless raise a number of practical concerns that all sides agree will ultimately be worked out in state legislatures or the courts. For instance, what happens if a patient's doctor-approved marijuana use conflicts with an employer's drug- testing policy? California's initiative doesn't stipulate that a "recommendation" be written, or that it suggest dosage and frequency--details that will need to be clarified in subsequent legislation. And neither law legalizes the sale or distribution of marijuana or other illegal drugs, meaning that patients will not necessarily have a lawful means of getting their prescribed medication.

These sorts of issues are yet to be hammered out, but the situation falls far short of the "legal anarchy" bemoaned by California Attorney General Lungren. Indeed, on November 6, Lungren himself issued guidelines on how state-level law officers should deal with the law, suggesting that the situation is something less than chaotic. The guidelines note that the proposition "may create an affirmative factual defense in certain criminal cases" and suggest that, when considering an arrest, officers should ask for and try to verify evidence that the suspect is using marijuana under a doctor's recommendation. Such guidelines represent a significant policy reversal: Last summer, Lungren himself authorized a highly publicized raid on San Francisco's Cannabis Buyers' Club.

More difficult questions revolve around the interaction of the new statutes with federal drug laws. Under federal law, it remains illegal to manufacture, use, possess, or distribute any Schedule I drugs, including marijuana. So even patients following doctors' orders--and complying with state laws--are violating federal law. The position of doctors is more complicated still. While doctors are already prohibited from prescribing Schedule I drugs, the U.S. Drug Enforcement Administration also licenses physicians to prescribe controlled substances such as morphine. The DEA carefully tracks the use of such drugs and exercises powerful oversight in that area. (See "No Relief in Sight," January.) It is not clear if the feds will respond to doctors who prescribe or recommend Schedule I drugs by revoking their authority to prescribe controlled substances. Indeed, it is not even clear how the DEA will learn that doctors are prescribing marijuana or other Schedule I drugs, since those prescriptions will not be filled by pharmacists.

The DEA's official position on the initiatives, announced the day after the elections, hardly clarifies the issue. "The passage of these propositions in no way alters the DEA's fundamental mission: to enforce the federal drug laws of the United States. The DEA intends to continue targeting the most significant drug traffickers at home and abroad." Due to limited resources, the DEA traditionally has ignored individual users and small-time dealers, focusing instead on "drug kingpins" and large commercial operations. The feds have largely left buyers' clubs alone. But the California Medical Association has expressed fears that doctors prescribing marijuana to more than a few patients will be categorized as "significant drug traffickers" and either lose their prescribing privileges or be arrested. Rep. Frank says that, given the overwhelming victories in both California and Arizona and the negative publicity associated with hauling legitimate practitioners into court, it is "very unlikely" that federal agents will go after doctors in those two states or elsewhere in the country.

At least in the short run, the DEA seems to be adopting a wait-and-see posture, ready to spring on any evidence of increased use among children and other groups as a way to move public opinion to support a federal crackdown. McCaffrey's office has announced plans to "actively collect data--i.e., drug related accident rates, teen pregnancy, work absences, hospital emergency cases, and the like--which will indicate the consequences of the referenda." It will be interesting to see what that discovery process turns up, especially since McCaffrey's conclusion already seems firmly in place: "A hoax has been perpetrated and will be exposed," he wrote after passage of Props. 200 and 215. "By our judgment, increased drug abuse in every category will be the inevitable result of the referenda."

In fact, very little is inevitable in the wake of the propositions. No one--opponent or proponent--knows for sure what will happen. In California, thousands of "registered" marijuana users already receive their pot from buyers' clubs. And, says NORML's Gieringer, there are already "scores" of doctors publicly "recommending" pot to patients. How much will medical-use rates change in the face of Prop. 215? Will more doctors get with the program? "There's no way to know," he says.

Singer, the Phoenix-area surgeon, says that although the Arizona law allows doctors to prescribe any Schedule I drug, "the most typical application will be marijuana for cancer patients and spinal-cord injury patients"--uses understood and seemingly accepted by the public. Will public opinion shift if doctors prescribe more controversial substances for less-sympathetic patients? How will voters react when the first parolees leave Arizona state prisons?

Similarly, it's unclear how recreational drug-use rates will change--or even whether such fluctuations can be tied to the initiatives. Nor can we know whether the possibility of a legal defense for possession and use of illegal drugs will discourage state and local cops from pursuing all such cases.

Following the passage of Props. 200 and 215, perhaps only this much is certain: A new conversation about drug policy is taking place, one that actually requires state and federal governments to enter into dialogue with citizens. "Just say no" has been answered with "Tell us why." It is not clear that the government will be able to hold up its end of the discussion.

In his official statement lamenting the new state laws, McCaffrey sputtered, "We had support from former Presidents Ford, Carter, and Bush"--as if a trinity of one-term ex-chief executives would somehow provide a boost to any cause. The statement reflects a flustered mindset, one that has not had to work hard in the past to win arguments: "Doctors will not recommend pot when there are clearly better treatments. Most parents do not want their kids smoking dope. The problem is, there will be a small group of doctors recommending marijuana to people."

As Americans for Medical Rights and other groups push initiatives in other states, the conversation about the medical use of currently illegal drugs is bound to continue. Frank says the California and Arizona initiatives "give some real oomph" to the medical-use debate. "They are another argument for changing federal law," he says. Although he concedes such a change is unlikely to unfold quickly, he suggests that Congress will take note of public opinion.

Nor, despite what opponents claim, is there any reason to assume that medical-use laws lead inexorably to legalization. Indeed, the "medicalization" of drug laws can be seen as simply shifting control from the criminal justice system to a more insidious, paternalistic authority (the Maricopa County, Arizona, Libertarian Party urged a "no" vote on Prop. 200 for similar reasons). While people may be willing to expand the current pharmacopoeia, they are not necessarily signing on to the idea that individuals should have the right to decide what drugs they can take. Just as drug warriors must explain themselves to a skeptical public, so too must legalizers.

The potential connection between medical use and legalization is, in fact, a fairly subtle one. McCaffrey has suggested, "There could not be a worse message to young people than the provisions of these referenda. Just when the nation is trying its hardest to educate teenagers not to use psychoactive drugs, now they are being told that 'marijuana and other drugs are good, they are medicine.'" On one level, such an equation is absurd: People--including teenagers--don't take drugs recreationally because they are certified as "good" medicine. If they did, we could expect a run on any number of drugs, ranging from Kaopectate to penicillin. At the same time, redefining marijuana as medicine makes people less likely to automatically agree that it is an unmitigated evil.

The real contribution of medical marijuana to the larger debate on legalization is that it may well put the lie to official claims about drugs. Lungren, for instance, has said that smoking or eating marijuana has no beneficial medical effect (even as he allows that Marinol, a prescription version of THC, the main active ingredient in marijuana, has some value). At the very least, recent events will focus more critical scrutiny on government statements. When McCaffrey presents his evidence of the "inevitable result of the referenda," he will have to work to convince his audience.

Yale Law School Professor Steven B. Duke suggests that if the public sees more and more people using marijuana medically and testifying to its value, they may rethink their position on it. "There might be a recognition as well that the government is lying in other areas of drug policy, too," says Duke, co-author of America's Longest War: Rethinking Our Tragic Crusade Against Drugs. "Among prohibitionists, there's a sense that if you give an inch, you lose everything. That's certainly the case with [opponents] of medical marijuana." Ironically, the failure to compromise on a relatively noncontroversial topic such as medical marijuana could open the door to a much broader rejection of the drug war.

It is in this sense that the initiatives have, as Arizona's John Sperling puts it, made the "debate on legalization possible." What shape it will take and what ends it will achieve are far from certain. Judging from poll data, there is currently little support for legalization. But as the passage of Props. 200 and 215 forces prohibitionists to justify their policies, and the country's experience with the open medical use of illegal substances gets underway, that debate should prove to be one full of possibilities.

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