More than 40 years after Congress tentatively classified marijuana as an unsafe drug with no medical benefits, the federal government is continuing to play a game of “gotcha” by precluding the required research to demonstrate those benefits, argued the lawyer for medical marijuana advocates in federal appeals court Tuesday morning.
During oral argument before the U.S. Court of Appeals for the D.C. Circuit, the second-most powerful U.S. court, lawyer Joseph Elford cited more than 200 studies that demonstrate the medical benefits of cannabis. He argued that the Drug Enforcement Administration’s decision not to remove marijuana from the Controlled Substances Act’s Schedule I, the most restrictive of the five schedules, was not supported by the evidence.
The studies cited by Elford have been rejected by the Drug Enforcement Administration as insufficiently rigorous. But Americans for Safe Access, a medical marijuana advocacy group, has argued that the federal government largely refuses to invest in additional studies precisely because the drug is listed as Schedule I. The Schedule I designation also means no prescriptions can be written for the drug, and Rhode Island Gov. Lincoln Chafee cited the designation as the reason for blocking that state’s medical marijuana law. Both Chafee and Washington Gov. Christie Gregoire have called for the drug to be rescheduled.
The classification of marijuana as a drug with no medical value appears increasingly at odds with the opinions of many doctors who attest to the medical benefits of the drug, and of patients, who take advantage of dispensaries in the 17 states where they are now legal. A 1970 House report initially recommended that Congress classify marijuana as Schedule I on the grounds that uncertainty remained about the effects of the drug, and suggested the classification “at least until the completion of certain studies now underway to resolve the issue.”
A number of highly addictive and potent drugs, such as cocaine, opium poppy, morphine and codeine, are listed as Schedule II, designated for those drugs that have a high potential for abuse and dependence, but which have “a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.” And the synthetic version of THC, known as dronabinol, is listed as Schedule III, even though THC is the ingredient in cannabis that causes psychoactive effects.
The D.C. Circuit is one of several fora for the escalating public battle over marijuana. Public support for ballot initiatives to legalize marijuana in three states continues to rise, with even higher support for medical marijuana initiatives, and the city of Oakland last week sued the federal government over prosecution of medical marijuana dispensary Harborside Health Center.
Regardless of the merits of the science supporting rescheduling, this case faces significant procedural hurdles. The three judges on the D.C. Circuit panel expressed some sympathy for claims that plaintiffs were harmed by the Schedule I classification, necessary to establish standing to sue in the first place. Judge Harry T. Edwards said at least one of the plaintiffs, Michael Krawitz, had established a strong argument that he had standing based on his inability to obtain medical marijuana through his Veterans Administration doctor to treat chronic pain and trauma. But neither the parties nor the judges devoted much time to an even tougher hurdle: overcoming the court’s traditional stance of extreme deference to the decisions of administrative agencies like the DEA.
Even if the court did side with the plaintiffs, it would likely return the case to the DEA to reconsider its decision or require a hearing on the issue, and the agency has already declined to reclassify marijuana several times before in 1972 and again in 1988, even after an Administrative Law Judge ruled that the drug should be reclassified.