Americans for Safe Access director Steph Sherer appeared on CNN this morning to inform the nation about the DC Circuit Court of Appeals hearing oral arguments today in the case of Americans for Safe Access v. Drug Enforcement Administration on the issue of marijuana’s federal status as a Schedule I drug.
This lawsuit is the third brought by marijuana advocates on this issue since NORML v. DEA was filed in the 1970′s and heard in the 1980′s. That’s the case where DEA Administrative Law Judge Francis L. Young ruled in 1988:
“Marijuana, in its natural form, is one of the safest therapeutically active substances know to man…. Marijuana has been accepted as capable of relieving distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”
The administrator of the DEA overruled Judge Young and so marijuana’s Schedule I lie has been maintained by the federal government ever since. Schedule I is a designation for drugs that are determined by the DEA to meet the following three conditions:
(1) Schedule I.–
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
Condition (A) is laughable. The National Institutes on Drug Abuse tell us that the dependence rate for marijuana initiates is about 9%. That means out of 100 people who will ever try marijuana, about nine of them will go on to develop a dependence on the drug. That compares to rates of 15% for (unscheduled legal) alcohol and 32% for (unscheduled legal) tobacco. other drugs that are listed in Schedule I as “drugs of abuse” with “no medical use” include heroin, LSD (acid), and PCP (angel dust).
Conditions (B) and (C) are demonstrably false. Seventeen states and the District of Columbia now have laws recognizing the medical use of marijuana. Last I checked, those jurisdictions were all located “in the United States.” Over a million Americans are using cannabis medically under the supervision of a medical professional and to date we have no reports of overdoses or deaths… because those are not physically possible with marijuana.
The court today will be hearing arguments for the medical use of cannabis. Proponents will deliver scientific studies and medical marijuana state data to show that marijuana should be rescheduled to perhaps Schedule II or III, designations that would allow marijuana to be prescribed by any doctor in the United States.
However, when you look at the rest of the drugs in these Schedules, it would seem that marijuana would go from an absurd criminal ban to a ridiculous prescription barrier. Drugs in Schedule II or Schedule III meet the following criteria:
(2) Schedule II.–
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.
(3) Schedule III.–
(A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.
So the court, in essence, will be deciding whether marijuana should continue to be treated like heroin and acid, or should it be treated like cocaine and methamphetamine (Schedule II), or should it be treated like anabolic steroids and ketamine (Schedule III)?
Medical marijuana supporters ought to think twice about whether a rescheduling victory is actually a victory when considering how they use marijuana. Schedule II cocaine is usually found only in dentists’ offices as an anasthetic for oral surgery. Schedule II methamphetamine usually takes pill form, like Adderall or Desoxyn. Schedule II and III drugs are still “illegal drugs” that will earn you jail time (an maybe even a subpoena from Congress, if you play baseball) if you’re caught with them without a prescription. So if you thought marijuana as Schedule III means you’ll be able to take your California dispensary bud with you to Texas, you’d better have a DEA-registered prescription for that and not just a California recommendation letter you bought on Venice Beach for $35.
Schedule II or III marijuana means many things, good and bad. Indeed, any doctor in the US would then be able to prescribe at the federal level, but states have their own Controlled Substances Acts and marijuana would need to be rescheduled there, too. Here in Oregon it is already Schedule II, so doctors could start writing official marijuana prescriptions… but would they? Doctors are already under much pressure for over-prescription of Schedule II drugs like Oxycontin.
With legal medical marijuana in Schedule II or III, pharmaceutical companies will have the go-ahead to produce cannabinoid pharmaceuticals. The goal will be development of drugs that duplicate all the best things about marijuana except for the high. Under such a scenario, what is the impetus for any future state to approve a medical marijuana program allowing for use and cultivation of the crude plant? Governments could still ban the production of the raw marijuana, just as you can get Schedule II dental cocaine, but you’re not allowed to grow your own coca plants. Patients would have no “sob story” about how they need plants to live when there is a legal pill, spray, or inhaler that works as well and is covered by their insurance or Medicare prescription plan.
Under a Schedule II or III marijuana classification, there are no longer such things as “medical marijuana patients”, just as we don’t designate “insulin patients” or “Adderall patients”. We designate patients by what they suffer from, not what drug they take for it. In that future there are “patients” for whom a cannabinoid pharmaceutical will suffice and there are “potheads” who just want to get high on illegal drugs. Pharmaceutical companies, eager to protect their $100-$250 million investment on bringing these drugs to market will pressure the existing medical marijuana states that allow home growing and plant use to discontinue those programs and the state governments will be hard-pressed to explain why they shouldn’t, when law enforcement will emphasize that cultivation isn’t necessary anymore and can only lead to illegal marijuana diversion, something that won’t be as much of an issue with pharmacies and cannabinoid drugs.
In the case of Americans for Safe Access vs. Drug Enforcement Administration it might be one of those “be careful what you wish for” scenarios. In winning the recognition of medical marijuana at the federal level, medical marijuana at the state level may become something we don’t recognize.