Medical Marijuana, Compassionate Use, and Public Policy: Expert Opinion or Vox Populi ?

A recent article in the Hastings Center Report reviewed the Supreme Court's current (but undoubtedly not final) delineation of the boundaries of federal power as set forth by the Constitution's commerce clause.¹ The question before the Court was straightforward: Did federal authority asserted under the Controlled Substance Act of 1970 (CSA) trump California's legalization of "medical marijuana" when these plants were grown within the state and were not bought, sold, or transported into another state?² By a six to three vote, the Raich court held that the federal Drug Enforcement Administration could enforce the CSA against two individuals who were growing marijuana for their own medical use in full compliance with California's Compassionate Use Act (Proposition 215). At the same time, the Court's holding neither struck down Proposition 215 nor demanded that California bring criminal charges against its citizens who were using marijuana on the advice of their physicians.

Unfortunately, the far more significant policy question raised by Proposition 215 was never adjudicated. In effect, Proposition 215 declared that some compounds used to treat disease could be evaluated and approved by a vote of the people rather than "by experts qualified by scientific training and experience," as mandated by the Food, Drug, and Cosmetic Act.³ But Proposition 215 was wrong as a matter of public policy. Anecdotes, Internet blogs, and advertisements do not provide a sound basis for assessing the safety and efficacy of pharmacologic agents.⁴ "Medical marijuana" should be subjected to the same scientific scrutiny as any drug proposed for use in medical therapy, rather than made legal for medical use by popular will.

In Raich and other cases⁵ involving Proposition 215, marijuana's advocates presented this compound to the courts as a drug, a pharmaceutical agent efficacious in the treatment of serious and even life-threatening illnesses:

Indeed, for Raich, 39, a mother of two teenagers who says she has been suffering from a litany of disabling ailments since she was a teenager herself, medical cannabis has worked where scores of other prescribed drugs have failed. . . . It relieves pain, she said, from progressive scoliosis, endometriosis and tumors in her uterus. Raich even believes it has something to do with arresting the growth of an inoperable brain tumor.

She is convinced that her use of medical marijuana, which began in 1997 after she had been using a wheelchair for two years, made her strong enough to stand up and learn to walk again. She said doctors could find no other explanation.⁶

These extravagant claims notwithstanding, marijuana has been used as a therapeutic agent throughout history, as Mathew W. Grey noted in a 1996 review of the use of medical marijuana:

Cannabis, more commonly referred to as marijuana, has a long history of medical use in this country and worldwide. Accounts dating back as far as 2700 B.C. describe the Chinese using marijuana for maladies ranging from rheumatism to constipation. There are similar reports of Indians, Africans, ancient Greeks and medieval Europeans using the substance to treat fevers, dysentery and malaria. In the United States, physicians documented the therapeutic properties of the drug as early as 1840, and the drug was included in the United States Pharmacopoeia, the official list of recognized medical drugs, from 1850 through 1942. During this period, lack of appetite was one of the indications for marijuana prescription.⁷

Such anecdotal reports have been used by marijuana's adherents to support their wish to exempt the drug from the same scrutiny required for any other compound that is used to treat, ameliorate, or prevent human disease. Specifically, they have never campaigned vigorously for medical marijuana's evaluation by the Food and Drug Administration. Had those who favored the use of smoked marijuana as a drug elected not to circumvent the Food, Drug, and Cosmetic Act, and had smoked marijuana successfully traversed the same FDA regulatory process required for any drug proposed for use in medical treatment, it would have attained the status of an approved pharmaceutical. It could then have been purchased legally and used...