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Showdown
Jay R. Cavanaugh, PhD *
July 2002
Last year the United States Supreme court ruled unanimously that the Controlled Substances Act provided no medical exemption for the third party distribution of cannabis. While the decision was limited to the third party distribution of medical cannabis by the Oakland Cannabis Buyers Club, the nation has the perception that the Court ruled against medical cannabis in general. That fight is still to come. In the meantime, patients like Brian Epis of Chico, California face ten year mandatory Federal minimums for growing medicine even if they are in compliance with State law.
On July 18, 2002, the California Supreme Court in the Mower case unanimously upheld the constitutionality of the Compassionate Use Act otherwise known as Proposition 215, a voters initiative passed in 1996. Patients in California who grow or use medical cannabis upon their physician's recommendation have limited immunity from prosecution under California drug laws. Since California voters approved medical cannabis, eight other States have implemented some form of medical cannabis program and other States are very interested.
So is medical cannabis legal or not? Nine State laws say it is while the Federal Government says it isn't. A major showdown is coming. The issue to be determined is far greater than whether or not medical cannabis helps the sick or whether or not Federal Drug laws supersede State laws. The issue to be decided in this historic confrontation is just who has the responsibility to regulate the practice of medicine. A preview of this showdown is playing out in the State of Oregon where the voter approved Death with Dignity Act is under assault by the United States Justice Department. The Feds claim that since they control the drugs they also control the doctors. The Federal government is not only contesting medical cannabis and physician assisted suicide; it is also contesting State programs to reign in skyrocketing prescription drug prices. This is a test of power, pure and simple.
On its side, the Federal Government has the Controlled Substances Act passed by Congress in the early 70's in response to drug abuse fears. It also has the Medicare purse strings, the FDA, funding for medical teaching institutions, and the Interstate Commerce Clause. The States, on the other hand, have the Ninth and Tenth Amendments to the Constitution along with voter or Legislative approval for specific medical programs such as physician assisted suicide and medical cannabis as adjunctive therapy.
Ask any physician how they feel about the Federal control of medical practice and you'll hear nothing but contempt. Big Brother has seriously wounded the vital physician/patient relationship. Very few physicians can practice medicine as they've been taught to. Innovation and creativity have been stifled and patients have been seriously hurt. Dangerous medications like Rezulin have been approved while nontoxic alternatives like cannabis have been banned. In essence, since the Controlled Substances Act and Medicare financing legislation, the United States has had socialized medicine in every respect except equal access to services that other national socialized medicine programs like those in Canada or England have. Patients in those nations are unhappy with the situation and patients here in the United States worry constantly about receiving quality care. The treatment options available to the sick and dying are strictly limited by the FDA, the DEA, and Medicare itself.
It will be very interesting to see just who takes what side in the coming showdown. Expect the AMA and State physician groups to strongly back the States along with the Governors and State Legislators. Expect the drug war zealots and criminal justice folks to back Washington. The position of Congress in this battle is uncertain. The joker in this game of high stakes poker are the patients themselves. They want Medicare and oversight of the drugs that are manufactured but they want more options including local alternative health care and freedom for their physicians to treat them without bureaucratic restraints.
Many are praying that the showdown will get the Federal Government out of the medical decision business. To do this, we may find that not only is medical cannabis and physician assisted suicide at stake but the Controlled Substances Act (CSA) itself. Without the CSA, the misbegotten War on Drugs collapses. Congress can amend the CSA or the United States Supreme Court can hold it unconstitutional. The health and welfare of millions of suffering Americans is what is at stake. Who do you trust? Your local physician and physician approved Standards of Practice or Big Brother in Washington?
* Jay R. Cavanaugh, PhD is a medical scientist from West Hills, California. He received his PhD in Biological Chemistry from Tulane University. Dr. Cavanaugh is a former California State Pharmacy Commissioner and presently serves as National Director for the American Alliance for Medical Cannabis.
22860 Lanark Street
West Hills, CA 91304
(818) 346-4493
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