This past June, the United States Supreme Court handed down its decision against Angel Raich and Diane Monson[i]. The vote was 6-3 to reverse the Federal Ninth Circuit Court with the decision written by Justice Stevens. Justices O'Connor, Rehnquist, and Thomas all dissented. The Court ruled that the federal government has the ability to regulate even intrastate and noncommercial marijuana possession/cultivation under the rubric of "interstate commerce" found in the Commerce Clause of the U.S. Constitution. In the prior Supreme Court ruling, United States vs. the Oakland Cannabis Buyers' Cooperative[ii], the Court ruled that "medical necessity" is not a legal defense to the possession, manufacture or distribution of marijuana, and that the federal law classifying marijuana as illegal has no exemption for ill patients. While the latest Supreme Court decision did not address medical necessity or due process arguments, Justice Stevens did write at the end of Section I of the majority opinion that: "The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes."[iii] One week after the Supreme Court ruling, the U.S. House of Representatives rejected an amendment prohibiting the federal government from undermining state medical marijuana laws. However, the bill received 13 more votes than last year, making a stronger showing in support of patients. The Supreme Court ruling and the subsequent defeat in Congress brought much angst to many ill people currently using medicinal marijuana. Fortunately, for those living in states that allow the use of medicinal marijuana, this ruling does not overturn these state laws.

Nearly all of the roughly 750,000 annual marijuana arrests in the United States are made by state and local officials. These local state laws would still protect patients in states that have adopted laws permitting the medical use of marijuana. States are not required to have laws that are identical to federal law, nor are they required to enforce federal laws. California Attorney General Bill Lockyer plainly stated this in a recent statement from his office: "The federal government cannot force state officials to enforce federal laws."[iv] While federal authorities retain the power to target patients and providers, hopefully state lawmakers will redouble their efforts to move forward with legislation that would protect patients from arrest and jail. States without current medical marijuana laws are still free to enact them. For example, following the Raich decision, Rhode Island's State Legislature passed a medical marijuana law in late June of this year. However, it was immediately vetoed by the Governor. The veto was then overturned by the Rhode Island Senate, and a House vote is pending.

We certainly acknowledge that marijuana is neither a miracle compound nor the answer to everyone's ills. Yet it is not a compound that deserves the tremendous legal and societal commotion that has occurred over it. Over the past 30 years, the United States has spent over a trillion dollars[v] in an effort to stem the use of illicit drugs, including marijuana, with limited success. Some very ill people have had to fight long court battles to defend themselves for the use of a compound that has effectively treated a medical condition and alleviated suffering for them. There is no evidence that non-medically sanctioned marijuana use has increased in states that have allowed for its medicinal use. Moreover, prohibition strategies have never proven terribly effective at limiting the use of a substance for any reason, whether alcohol or other compounds. The Drug Enforcement Administration (DEA) frequently mentions that more people are "seeking" treatment for marijuana addiction but fails to mention that this is court-mandated treatment and can be coercively forced on an individual after the first offense in some states[vi]. The DEA also likes to proclaim the fact that marijuana is stronger today than it was during "the summer of love" (circa 1967). However, it also fails to mention that doctors can prescribe dronabinol (Marinol), which is 100% pure synthetic delta nine-tetrahydracannabinol (THC). Most patients find Marinol too sedating. It is the most psychoactive cannabinoid, yet the DEA categorizes it as a schedule III drug, meaning that physicians can phone in a subscription. Marinol has never caused a death or life-threatening side effect. The DEA's own Administrative Law Judge, the Honorable Francis Young, stated in 1988, "Marijuana is the safest therapeutically active substance known to man..." He went on to say, "the evidence clearly shows that marijuana is capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervisionžit would be unreasonable, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance."[vii]

Despite these conclusions, over a decade and a half later, the DEA and the rest of the federal government persist in their policy of total prohibition. Marijuana is still federally classified as a Schedule I substance having "no currently accepted medical use in treatment in the United States." But given the wide medical support for marijuana on the books in many countries and 11 US states, given the wide support for medical marijuana by many U.S. public health and medical groups such as the Institute of Medicine, and given the results of several recent national polls by Time, Zobgy, and others showing that 68%-80% of the American public supports medical marijuana[viii], the question is: by whose criteria is marijuana not an "accepted medical.treatment"? Even the 1972 Nixon-appointed blue ribbon Shafer Commission actually recommended that marijuana be decriminalized[ix].

However, the purpose of this editorial is not to discuss the pros and cons of medicinal versus non-medically sanctioned marijuana use. That is a totally separate and altogether different topic. However, in our opinion, the medicinal marijuana user should not be considered a criminal in any state. Rational minds need to take over drug control, separating myth from fact, right from wrong, and responsible, medicinal use from other usages. Despite overwhelming scientific evidence of medical benefit, following the Supreme Court ruling, Drug Czar John Walters commented, "The medical marijuana farce is done." He then added, "I don't doubt that some people feel better when they use marijuana, but that's not modern science. That's snake oil."[x] But isn't the very definition of palliative care the abatement suffering in order to make patients "feel better"? This is what we do for a living!

Despite the overwhelming evidence of positive benefit, the Office of National Drug Control Policy continues to scour the medical literature for any evidence of an untoward effect of cannabis, recently pointing to a study linking marijuana use and schizophrenic symptoms[xi]. That study was flawed, however, as none of the subjects were randomly assigned to smoke cannabis. Thus pre-existing conditions may have led people towards cannabis use, which is the likely explanation for the findings. In addition, most studies purporting to show a link between marijuana and psychosis assess symptoms, not the disorder. Symptom checklists and questionnaires include items that might fit the features of cannabis-induced altered states of consciousness in a setting of legal prohibition (paranoia, deviant thoughts, etc.), but the researchers often fail to state that people should not include any drugged experiences when responding to questions. The questions also often include items that anyone who engages in a deviant behavior like cannabis use would have to endorse even if they had no psychotic symptoms. As Mirken and Earleywine state in their letter in response to this recent study: "Someone using a substance that is both illegal and socially frowned-upon almost by definition has 'ideas or beliefs that others do not share.' This is not a sign of mental illness, but rather an indication of a rational, thinking person realistically assessing his or her situation. Considering the widespread use of undercover officers in drug stings, the same can be said for 'feeling other people cannot be trusted.'"[xii] Even the trumpeted evidence that cannabis smoke causes pre-cancerous lesions in the upper respiratory tract has now been refuted, by a team led by the original NIDA-funded investigator[xiii]. Cannabis smoke can be avoided altogether with the highly effective delivery method of vaporization, in which the traditional flame and combustion approach is substituted for a stream of hot air which sublimates the active chemicals in a fine vapor mist.

We now know that cannabioind receptors exist in many areas of the body and endogenous cannabinoids appear to regulate many systems in the body, including analgesia, muscle relaxation, bronchodilation, appetite stimulation and sleep induction, among others. The scientific process continues to evaluate the therapeutic effects of marijuana through ongoing research and assessment of available data. With regard to the medicinal use of marijuana, our legal system should take a similar approach, using science and logic as the basis of policymaking rather than political views and societal trends that are more reflective of the ongoing debate over any potential harmful effects of marijuana use, outside of the doctor-patient relationship. Marijuana has remarkably low toxicity and lethal doses in humans have not been described. This is in stark contrast to a number of other commonly prescribed medications used for similar purposes, including opiates, anti-emetics, anti-depressants, and muscle relaxants, not to mention legal substances used widely, including tobacco and alcohol, whose lethality potential with problematic use is routinely documented in autopsy reports and death certificates.

We do have a final word of precaution. Given this current administration's track record of aggressive political stands, it would not be unrealistic to predict that there will be a prosecution of someone using marijuana somewhere along the line to send a strong message, both to patients and states, that the Supreme Court ruling should be taken seriously. The Bush administration has taken a hard stand against state medical marijuana laws, but it is unclear how it will respond to the new prosecutorial power. Justice Department spokesman John Nowacki would not say whether prosecutors would pursue cases against individual users, but DEA Chief Karen Tandy was quoted as saying on the day of the Supreme Court ruling: "we don't target sick and dying people"[xiv]. For the present, physicians must take special care when discussing medicinal marijuana with their patients and must be sure they understand the state and local laws governing what physicians can safely say and what patients can legally possess and use. The First Amendment right to free speech and the privacy of the doctor-patient relationship still protect physicians who make recommendations to their patients for medicinal marijuana use, as the Ninth Circuit Federal Court ruled in Conant v. Walters[xv], and which the Supreme Court let stand.

As with any medication, proper documentation of the risks and benefits and any other requirements mandated by local laws must be clearly noted in the medical record. Physicians must be careful not to let their enthusiasm, frustration, and concern for suffering cause them to be careless when taking advantage of any law allowing their patients to use medicinal marijuana. Physicians who frequently authorize the therapeutic use of marijuana could potentially be investigated by federal authorities for compliance with the law, even in the form of an undercover agent disguised as a patient. It is worth noting that no physician has yet lost his or her license to prescribe medications or has been prosecuted federally for authorizing the medicinal use of marijuana. At the state level, compliance with the terms of the local law allowing medicinal use of marijuana continues to protect physicians who authorize such uses to alleviate suffering. When it comes to sensitive patient care, health care providers who recommend marijuana and care for these patients should be especially mindful of the overall environment of stress and anxiety that patients face outside the clinic due to the conflicting legal status of medical marijuana.