Medical Marijuana, Physician-Assisted Suicide, and the Controlled Substances Act
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《新英格兰医药杂志》
The Controlled Substances Act is a 1970 law designed to prevent drug abuse and trafficking and to control the authorized distribution of narcotics, barbiturates, and other scheduled drugs. Nearly 35 years after its passage, the act is at the center of heated legal controversies about the medical use of marijuana and physician-assisted suicide. Cases related to both of these issues test the power of Attorney General John Ashcroft, the conservative former senator from Missouri, who is a long-standing opponent of both activities.
(Figure)
States license physicians and regulate the practice of medicine; the federal government enforces drug laws. Both the Bush and Clinton administrations have steadfastly opposed the medical use of marijuana. The Justice Department has raided farms, shut down dispensaries, and prosecuted suppliers. It has sought to punish doctors who recommend marijuana for medical purposes — for example, by excluding them from the Medicare program or suspending or revoking their registration with the Drug Enforcement Administration (DEA), an agency within the department. Under Ashcroft, the Justice Department has also sought to penalize Oregon physicians who prescribe lethal doses of medication to terminally ill patients by suspending or revoking their DEA registration.
Under the Controlled Substances Act, drugs and other substances are classified in one of five schedules; they "may not be placed in any schedule unless the findings required for such schedule are made." For placement on schedule I, the required findings are "a high potential for abuse," "no currently accepted medical use in treatment in the United States," and "a lack of accepted safety for use of the drug or other substance under medical supervision." Heroin and LSD are schedule I substances.
Marijuana is currently categorized as a schedule I substance. This long-standing federal classification has been questioned repeatedly.1 Proponents of reclassifying marijuana at least to schedule II argue that the required findings are a better fit: a drug or substance meeting schedule II criteria has "a high potential for abuse," "a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions," and "abuse of the drug or other substances may lead to severe psychological or physical dependence." Cocaine and morphine are schedule II substances.
In November 1996, California voters approved Proposition 215, the first state initiative regarding the medical use of marijuana. The law, also known as the Compassionate Use Act of 1996, provides strong protections for physicians. Among its purposes are "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." Voters in seven other states — Alaska, Arizona, Colorado, Maine, Nevada, Oregon, and Washington — have also approved medical-marijuana initiatives. Three state legislatures — in Hawaii, Maryland, and Vermont — have passed medical-marijuana bills. The specifics and the legal protections of the initiatives and the bills vary widely. Voters in the District of Columbia also approved an initiative, but Congress overrode it.
In 1997, the then editor-in-chief of the Journal wrote that "a federal policy that prohibits physicians from alleviating suffering by prescribing marijuana for severely ill patients is misguided, heavy-handed and inhumane."1 According to the Institute of Medicine, "scientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [tetrahydrocannabinol], for pain relief, control of nausea and vomiting, and appetite stimulation."2 The institute's report cautioned that smoked marijuana "is a crude THC delivery system that also delivers harmful substances" and that "the psychological effects of cannabinoids, such as anxiety reduction, sedation and euphoria can influence their potential therapeutic value. These effects are potentially undesirable for certain patients and situations and beneficial for others."2 In a May 2004 statement, the Medical Board of California (MBC) called medical marijuana "an emerging treatment modality" and assured physicians "who choose to recommend medical marijuana to their patients, as part of their regular practice of medicine, that they WILL NOT be subject to investigation or disciplinary action by the MBC if they arrive at the decision to make this recommendation in accordance with accepted standards of medical responsibility."
The Justice Department has repeatedly challenged California's law, with mixed results. In 2001, the Supreme Court ruled, in an 8-to-0 decision in United States v. Oakland Cannabis Buyers' Cooperative, that the Controlled Substances Act does not allow an exception for medical purposes to its prohibitions on the manufacture and distribution of marijuana. However, in 2002, the Ninth Circuit Court of Appeals in San Francisco, in a 3-to-0 decision in Conant v. Walters, ruled that physicians have a constitutionally protected right to discuss the medical use of marijuana with their patients and to recommend it orally or in writing. The court cautioned physicians against aiding their patients in obtaining marijuana. In October 2003, the Supreme Court declined to hear the attorney general's appeal, leaving the decision intact.
The latest legal challenge is Raich v. Ashcroft, a case that is now before the Supreme Court. The crux of the case is the extent of the federal government's authority over marijuana use.3 Under the Controlled Substances Act, does it have authority over all marijuana use, as the attorney general claims? Or does it lack authority in a specific situation, "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California law"3? In August 2002, DEA agents raided the home of Diane Monson, a California resident who uses marijuana as a medicine for severe chronic back pain and cultivates it for personal use. They seized and destroyed her six cannabis plants. Angel McClary Raich is a Californian who has an inoperable brain tumor and other chronic diseases, uses marijuana as a medicine, and receives it free of charge from caregivers who cultivate it for her because she is unable to do so herself. In October 2002, Monson and Raich sued the attorney general and the administrator of the DEA. In December 2003, a three-judge panel of the Ninth Circuit Court of Appeals, in a 2-to-1 decision, ruled that the Controlled Substances Act, as applied to the plaintiffs, "is likely unconstitutional."3 In May 2004, a federal district court issued a preliminary injunction that protects the two women and their supplies of medical marijuana. In June, the Supreme Court agreed to hear Ashcroft's appeal. The case should be decided during the Court's 2004 term, which begins October 4.
Ashcroft has also cited the Controlled Substances Act in steadfastly challenging the practice of physician-assisted suicide. Oregon is the only state where this practice is legal. In 1994 and again in 1997, Oregon voters approved a referendum known as the Death with Dignity Act. The act allows terminally ill state residents, defined as adults with an illness expected to lead to death within six months, to receive a prescription for a lethal dose of a controlled substance. Between 1998 and 2003, physicians in Oregon wrote a total of 265 prescriptions for lethal doses of medications (usually a barbiturate), and 171 patients died after ingesting lethal medications that were prescribed legally (see Figure).
Figure. Physician-Assisted Suicide in Oregon, 1998–2003.
Data are from the Oregon Department of Health Services.
Ashcroft's challenge to the Oregon law is based on his ruling in 2001 that physician-assisted suicide is not a "legitimate medical purpose" under the Controlled Substances Act and that "prescribing, dispensing or administering federally controlled substances to assist suicide violates the [act]."4 His ruling reversed the decision of his predecessor, Janet Reno. Reno had interpreted the act differently, concluding that it did not authorize the DEA "to prosecute, or to revoke the registration of, a physician who has assisted in suicide in compliance with Oregon law."
The state of Oregon and others immediately began a legal defense of the act. In May 2004, a three-judge panel of the Ninth Circuit Court of Appeals, in a two-to-one decision, ruled that the so-called Ashcroft Directive is "unlawful and unenforceable because it violates the plain language of the [Controlled Substances Act], contravenes Congress' express legislative intent, and oversteps the bounds of the Attorney General's statutory authority."5 In August 2004, the appeals court denied the Justice Department's request for a rehearing. As of mid-September, it was not known whether Ashcroft will appeal to the Supreme Court. In 1997, before the second Oregon vote, the Court upheld laws in New York and Washington that prohibited physician-assisted suicide and unanimously ruled that there is no constitutional right to assisted suicide. The Court, however, left the states free to legalize the practice.
Although the specific issues are different, the assisted-suicide and medical marijuana cases raise the question of whether the Justice Department is defending the Controlled Substances Act or using the act to advance a political agenda. Even people who personally oppose physician-assisted suicide have objected to the repeated federal efforts to interfere with Oregon's law. As has been discussed for years, the federal government could defuse the controversy over the medical use of marijuana by reclassifying it to schedule II or a lower classification.1 As a schedule II substance, marijuana would be tightly regulated but accessible for medical purposes.
References
Kassirer JP. Federal foolishness and marijuana. N Engl J Med 1997;336:366-367.
Joy JE, Watson SJ Jr, Benson JA, eds. Marijuana and medicine: assessing the science base. Washington, D.C.: National Academy Press, 1999.
Raich v. Ashcroft, 352 F.3d 1222 (9th cir. 2003).
Steinbrook R. Physician-assisted suicide in Oregon -- an uncertain future. N Engl J Med 2002;346:460-464.
Oregon v. Ashcroft, 368 F.3d 1118 (9th cir. 2004).(Robert Steinbrook, M.D.)
(Figure)
States license physicians and regulate the practice of medicine; the federal government enforces drug laws. Both the Bush and Clinton administrations have steadfastly opposed the medical use of marijuana. The Justice Department has raided farms, shut down dispensaries, and prosecuted suppliers. It has sought to punish doctors who recommend marijuana for medical purposes — for example, by excluding them from the Medicare program or suspending or revoking their registration with the Drug Enforcement Administration (DEA), an agency within the department. Under Ashcroft, the Justice Department has also sought to penalize Oregon physicians who prescribe lethal doses of medication to terminally ill patients by suspending or revoking their DEA registration.
Under the Controlled Substances Act, drugs and other substances are classified in one of five schedules; they "may not be placed in any schedule unless the findings required for such schedule are made." For placement on schedule I, the required findings are "a high potential for abuse," "no currently accepted medical use in treatment in the United States," and "a lack of accepted safety for use of the drug or other substance under medical supervision." Heroin and LSD are schedule I substances.
Marijuana is currently categorized as a schedule I substance. This long-standing federal classification has been questioned repeatedly.1 Proponents of reclassifying marijuana at least to schedule II argue that the required findings are a better fit: a drug or substance meeting schedule II criteria has "a high potential for abuse," "a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions," and "abuse of the drug or other substances may lead to severe psychological or physical dependence." Cocaine and morphine are schedule II substances.
In November 1996, California voters approved Proposition 215, the first state initiative regarding the medical use of marijuana. The law, also known as the Compassionate Use Act of 1996, provides strong protections for physicians. Among its purposes are "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." Voters in seven other states — Alaska, Arizona, Colorado, Maine, Nevada, Oregon, and Washington — have also approved medical-marijuana initiatives. Three state legislatures — in Hawaii, Maryland, and Vermont — have passed medical-marijuana bills. The specifics and the legal protections of the initiatives and the bills vary widely. Voters in the District of Columbia also approved an initiative, but Congress overrode it.
In 1997, the then editor-in-chief of the Journal wrote that "a federal policy that prohibits physicians from alleviating suffering by prescribing marijuana for severely ill patients is misguided, heavy-handed and inhumane."1 According to the Institute of Medicine, "scientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [tetrahydrocannabinol], for pain relief, control of nausea and vomiting, and appetite stimulation."2 The institute's report cautioned that smoked marijuana "is a crude THC delivery system that also delivers harmful substances" and that "the psychological effects of cannabinoids, such as anxiety reduction, sedation and euphoria can influence their potential therapeutic value. These effects are potentially undesirable for certain patients and situations and beneficial for others."2 In a May 2004 statement, the Medical Board of California (MBC) called medical marijuana "an emerging treatment modality" and assured physicians "who choose to recommend medical marijuana to their patients, as part of their regular practice of medicine, that they WILL NOT be subject to investigation or disciplinary action by the MBC if they arrive at the decision to make this recommendation in accordance with accepted standards of medical responsibility."
The Justice Department has repeatedly challenged California's law, with mixed results. In 2001, the Supreme Court ruled, in an 8-to-0 decision in United States v. Oakland Cannabis Buyers' Cooperative, that the Controlled Substances Act does not allow an exception for medical purposes to its prohibitions on the manufacture and distribution of marijuana. However, in 2002, the Ninth Circuit Court of Appeals in San Francisco, in a 3-to-0 decision in Conant v. Walters, ruled that physicians have a constitutionally protected right to discuss the medical use of marijuana with their patients and to recommend it orally or in writing. The court cautioned physicians against aiding their patients in obtaining marijuana. In October 2003, the Supreme Court declined to hear the attorney general's appeal, leaving the decision intact.
The latest legal challenge is Raich v. Ashcroft, a case that is now before the Supreme Court. The crux of the case is the extent of the federal government's authority over marijuana use.3 Under the Controlled Substances Act, does it have authority over all marijuana use, as the attorney general claims? Or does it lack authority in a specific situation, "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California law"3? In August 2002, DEA agents raided the home of Diane Monson, a California resident who uses marijuana as a medicine for severe chronic back pain and cultivates it for personal use. They seized and destroyed her six cannabis plants. Angel McClary Raich is a Californian who has an inoperable brain tumor and other chronic diseases, uses marijuana as a medicine, and receives it free of charge from caregivers who cultivate it for her because she is unable to do so herself. In October 2002, Monson and Raich sued the attorney general and the administrator of the DEA. In December 2003, a three-judge panel of the Ninth Circuit Court of Appeals, in a 2-to-1 decision, ruled that the Controlled Substances Act, as applied to the plaintiffs, "is likely unconstitutional."3 In May 2004, a federal district court issued a preliminary injunction that protects the two women and their supplies of medical marijuana. In June, the Supreme Court agreed to hear Ashcroft's appeal. The case should be decided during the Court's 2004 term, which begins October 4.
Ashcroft has also cited the Controlled Substances Act in steadfastly challenging the practice of physician-assisted suicide. Oregon is the only state where this practice is legal. In 1994 and again in 1997, Oregon voters approved a referendum known as the Death with Dignity Act. The act allows terminally ill state residents, defined as adults with an illness expected to lead to death within six months, to receive a prescription for a lethal dose of a controlled substance. Between 1998 and 2003, physicians in Oregon wrote a total of 265 prescriptions for lethal doses of medications (usually a barbiturate), and 171 patients died after ingesting lethal medications that were prescribed legally (see Figure).
Figure. Physician-Assisted Suicide in Oregon, 1998–2003.
Data are from the Oregon Department of Health Services.
Ashcroft's challenge to the Oregon law is based on his ruling in 2001 that physician-assisted suicide is not a "legitimate medical purpose" under the Controlled Substances Act and that "prescribing, dispensing or administering federally controlled substances to assist suicide violates the [act]."4 His ruling reversed the decision of his predecessor, Janet Reno. Reno had interpreted the act differently, concluding that it did not authorize the DEA "to prosecute, or to revoke the registration of, a physician who has assisted in suicide in compliance with Oregon law."
The state of Oregon and others immediately began a legal defense of the act. In May 2004, a three-judge panel of the Ninth Circuit Court of Appeals, in a two-to-one decision, ruled that the so-called Ashcroft Directive is "unlawful and unenforceable because it violates the plain language of the [Controlled Substances Act], contravenes Congress' express legislative intent, and oversteps the bounds of the Attorney General's statutory authority."5 In August 2004, the appeals court denied the Justice Department's request for a rehearing. As of mid-September, it was not known whether Ashcroft will appeal to the Supreme Court. In 1997, before the second Oregon vote, the Court upheld laws in New York and Washington that prohibited physician-assisted suicide and unanimously ruled that there is no constitutional right to assisted suicide. The Court, however, left the states free to legalize the practice.
Although the specific issues are different, the assisted-suicide and medical marijuana cases raise the question of whether the Justice Department is defending the Controlled Substances Act or using the act to advance a political agenda. Even people who personally oppose physician-assisted suicide have objected to the repeated federal efforts to interfere with Oregon's law. As has been discussed for years, the federal government could defuse the controversy over the medical use of marijuana by reclassifying it to schedule II or a lower classification.1 As a schedule II substance, marijuana would be tightly regulated but accessible for medical purposes.
References
Kassirer JP. Federal foolishness and marijuana. N Engl J Med 1997;336:366-367.
Joy JE, Watson SJ Jr, Benson JA, eds. Marijuana and medicine: assessing the science base. Washington, D.C.: National Academy Press, 1999.
Raich v. Ashcroft, 352 F.3d 1222 (9th cir. 2003).
Steinbrook R. Physician-assisted suicide in Oregon -- an uncertain future. N Engl J Med 2002;346:460-464.
Oregon v. Ashcroft, 368 F.3d 1118 (9th cir. 2004).(Robert Steinbrook, M.D.)