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.

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The Supreme Court heard oral arguments in Gonzales v Oregon a couple days ago, a case where the federal government is asserting that the Controlled Substances Act (CSA) - or at least this administration's interpretation of it - trumps the Oregon assisted suicide law, which was passed by popular…

The science behind medical marijuana is compelling but still inconclusive in many areas.

Donald Abrams of UCLA has reported having trouble getting journals to accept his latest study, which is a double-blind study showing the effects of smoked whole MMJ on peripheral neuropathic pain in HIV+ patients. Till then, the Prohibs can keep on saying that no studies show medical efficiacy of smoked MMJ. Hmm.

FDA is also currently considering GW Pharmaceuticals' oromucosal cannabis extract, Sativex. From a drug development standpoint, their approach has been to agree that smoking is not an appropriate route of administration, more from a dose-reproducibility standpoint than due to concerns about smoking, and that has played in Europe and Canada.

The product is actually a standardized herbal extract from two Cannabis cultivars, one optimized for THC and the other optimized for cannabidiol (CBD), the non-psychoactive CB2 ligand. However, each extract contains a multitude of other cannabinoids that improved the bioavailability of the THC and CBD. If approved in the US, this will be the first multi-component, natural extract since Premarin, the pregnant mare urine extract of estrogens.

A bigger question is whether approval of Sativex will put the nail in the coffin for medical marijuana since the drug product answers many, but not all, of the concerns of MM proponents.

But seriously, this is crazy. Cannabis is nowhere near as addictive as alcohol or nicotine, and probably has far more health benefits. Like alcohol and nicotine, cannabis can be made/grown at home and we should just let folks grow a small amount for personal consumption (just like beer homebrewing). But, it is even illegal in the US now to buy seeds - Nick, what are the laws like in the UK?

I just reviewed for a British journal a superb book edited by Raphael Mechoulam (discoverer of THC from Hebrew University) called Cannabinoids in Therapeutics, part of Springer's Milestones in Drug Therapy series (…). It is the single best guide I have found to documenting the therapeutic benefit of smoked marijuana or Sativex for a number of conditions, but primarily cancer pain, HIV/AIDS cachexia, and neuropathic pain of multiple sclerosis. Although it is steeply priced at around 179 British pounds, med school libraries should already have copies.

Getting back to Sativex, you should really hunt down Dr Geoffrey Guy from GW Pharma while you are in the UK. Cannabis enthusiasts may criticize him because making a real drug out of the herb will undercut the freedom to grow cannabis for medical purposes, but he is very principled and feels that their approach is the single best way for the medicinal utility of cannabis to be implemented legally.

their approach has been to agree that smoking is not an appropriate route of administration, more from a dose-reproducibility standpoint than due to concerns about smoking

That makes even less sense to me. If one is using it to treat pain, then considering the relatively rapid onset of smoking and low acute toxicity, one does not need to administer a numerically exact dose, but instead titrate till necessary.

In fact, I suspect the reasons for shunning smoking are clear, although they fall into mild tinfoil-hat category. As marijuana is directly traded as dried plant matter, smoking is the predominant method for consumption. If you read the DEA/ONDCP statements against MMJ, they take care to refer to "smoked marijuana". If smoked marijuana is approved, then marijuana has to be shifted to another schedule, most likely II. This would also give a push to the overall marijuana legalization movement and would atleast lower the credibility of these govt. agencies. However, if the cannabinoid therapy approved uses a derived formulation which requires a proprietary device, then marijuana remains in Schedule I, the new formulation is placed in Schedule II/III (like Marinol) and the DEA et al. can keep on saying that "smoked MMJ" i.e. street pot has no medical use. Furthermore, if the relative price ratio of Sativex to street product in Canada is a rough indicator, then many may still opt for the street product.

Will Sativex help headache pain associated with RSD?
Will honey oil, a marijuana offshoot help? My son ,
43, has been prescribed Topomax for chronic headaches. The drug is no longer working. Will Zomig nasal inhalant work?

By sue griffiths (not verified) on 23 Jun 2007 #permalink

Oh how I love the never ending debate over medical weed! Especially when it comes to the issue of the short term benefits and long term side effects. Yes, any type of smoking will eventually turn your lungs into jerky (I myself am none too proud to admit first hand experience >HACK< >COUGH< >CHOKE<), but this is a calculated risk weighed against immediate relief. What I find ridiculous is that there is so much concern over long term affects when we have a whole buffet of antidepressants that have been shown to cause SUICIDAL THOUGHTS!!! Now, I've been a pot-head, and I've been on antidepressants,(regret both) and all I know is that I never tried to kill myself after smokin' a fatty...

Hmm...the rest of my comment didn't show up...I promise I had a point with all that.


I find the concern over medical pot's side effects vs. benefits ridiculous. Is pot (when used reasonably to treat an illness) any more dangerous than the myriad other prescription drugs on the market? Take antidepressants-(I did) name one that doesn't openly state in their advertising the possible side-effect of SUICIDAL THOUGHTS! Now, I've been a pot-head, and have used antidepressants, but I never tried to kill myself after smoking a fatty!