Should the Government Prohibit Physicians from Recommending Medical Marijuana?

The Office of National Drug Control Policy stated in a Dec. 30, 1996 policy titled “The Administration’s Response to the Passage of California Proposition 215 and Arizona Proposition 200”:

The US Department of Health and Human Services (HHS) and the US Department Justice (DOJ) sent a letter to the California Medical Association on Feb. 27, 1997, which stated:

“Before their enactment [California and Arizona medical marijuana laws], nothing in federal law prevented a physician, in the context of a legitimate physician-patient relationship, from merely discussing with a patient the risks and alleged benefits of marijuana to relieve pain or alleviate symptoms. This continues to be true…

Such discussions, however, have their limits. Physicians may not intentionally provide their patients with oral or written statements in order to enable them to obtain controlled substances in violation of federal law…

Federal law establishes specific criteria that every potential medication must meet before it can be sold to the public or prescribed by doctors…

This process must be preserved. What is, and what is not, a drug with an accepted medical use should continue to be determined through rigorous scientific testing. To date, the scientific testing of marijuana has not demonstrated that marijuana is a safe and effective drug with an accepted medical use.”

Asa Hutchinson, then Administrator of the U.S. Drug Enforcement Administration (DEA), said in a Mar. 14, 2002 speech:

“Several states have passed marijuana initiatives that allow doctors to prescribe marijuana for medical treatment. That’s not the way it should be done. The DEA remains opposed to that, which is a position that may not be popular with some…

The central point in our position is that the American public must be confident that controlled drugs are used for legitimate medical purposes and will cause no undue harm to patients.”

The U.S. Department of Justice wrote to the U.S. Supreme Court in July 2003 in its “Petition For A Writ of Certiorari” in the case of Walters vs. Conant:

“The practice of medicine is subject to reasonable licensing and regulation, even where that practice involves speech…

Any First Amendment rights of doctors in the course of their practice of medicine, like the rights of other highly regulated professionals, must be ‘balance[d]… against the State’s legitimate interest in regulating the activity in question.’

It is beyond dispute that a physician’s recommendation that a patient take Schedule I controlled substances such as heroin or LSD would be a threat to public health and safety and justify investigation and potential revocation of the physician’s registration.

There is no statutory or First Amendment basis for treating marijuana, another Schedule I substance, differently. The government’s ability to enforce the CSA cannot vary from one Schedule I substance to another based on public policy views adopted by States or the courts.”

The U.S. Food and Drug Administration (FDA) stated in testimony before U.S. Congress on Apr. 1, 2004:

“FDA has not approved marijuana for medical use in the United States. Despite its status as an unapproved new drug, there has been considerable interest in its use for the treatment of a number of conditions, including glaucoma, AIDS wasting, neuropathic pain, treatment of spasticity associated with multiple sclerosis, and chemotherapy-induced nausea. Under the Controlled Substances Act (CSA) Congress listed marijuana in Schedule I. Schedule I substances have a very high potential for abuse, no accepted medical use in the United States, and lack accepted safety data for use under medical supervision.

Having access to a drug or medical treatment, without knowing how to use it or even if it is effective, does not benefit anyone. Simply having access, without having safety, efficacy, and adequate use information does not help patients.”

The Institute on Global Drug Policy (IGDP) of the Drug Free America Foundation, National Families in Action, Drug Watch International, et al., filed an Amicus Brief on Jan. 10, 2001 in the case of the United States vs. Oakland Cannabis Buyers’ Cooperative, which stated:

“There is a strong governmental interest in prohibiting the distribution of crude marijuana as medicine.

The federal government strives to protect our citizens from unsafe, ineffective substances sold as ‘medicines’ and from drug abuse, drug addiction, and the abusive and criminal behaviors that marijuana and other illicit drugs often generate.”

Peter A. Clark, PhD, John McShain Chair in Ethics at Saint Joseph’s University, wrote the following forward in the Apr. 2003 book Jeffrey’s Journey by Debbie Jeffries and LaRayne Jeffries:

“To deny physicians the right to prescribe to their patients a therapy that relieves pain and suffering is to violate the physician-patient relationship…

Physicians have the medical responsibility to provide adequate relief from both pain and suffering in order to give their patients an acceptable quality of life.

Failure to offer an available therapy that has proven to be effective would violate the basic ethical principle of nonmaleficence which prohibits infliction of harm, injury, or death, and is related to the maxim primum non nocere (‘above all, or first, do no harm’), which is widely used to describe the duties of physicians.

Therefore, in the patients’ best interest, patients, and in the case of a minor, parents and/or surrogates, have the right to request medical marijuana under certain circumstances and physicians have the duty to disclose medical marijuana as an option and prescribe it when appropriate. Scientific data has shown that the benefits of medical marijuana far outweigh the burdens.”

The California Medical Association (CMA) stated in a 2001 policy statement:

“[The] CMA continue[s] to support the ability of physicians to discuss and make recommendations concerning the potential benefits or harm to the patient of smoked herbal cannabis consistent with state and federal law and oppose criminal prosecution of patients who possess or use smoked herbal cannabis for medical reasons upon the recommendation of a physician.”

Americans for Medical Rights (AMR) was quoted in a Dec. 24, 1996 CNN story “Feds Could Punish Doctors Who Prescribe Medicinal Pot”:”Doctors making a marijuana recommendation to patients would not be violating federal law, because they would not actually be prescribing something.

The voters did not ask for a war on doctors. They called upon government officials to respect the rights of patients and doctors who are involved in the medical use of marijuana.”

Lester Grinspoon, MD, Professor of Psychiatry at Harvard Medical School, stated in his article “The Medical Marijuana Problem” published in Cannabis Health Mar./Apr. 2006:

“The formal drug approval procedures help to provide physicians with the information they need to make… an informal analysis… taking into account not just the drug’s overall safety and efficacy, but its risks and benefits for a given patient with a given condition…

But I have come to doubt whether the FDA rules should apply to cannabis.

There is no question about its safety. It is one of humanity’s oldest medicines, used for thousands of years by millions of people with very little evidence of significant toxic effects. More is known about its adverse effects than about those of most prescription drugs….

Thousands of years of use have demonstrated its medical value… The modern FDA protocol is not necessary to establish a risk-benefit estimate for a drug with such a history.”

Kate Scannell, MD, Co-Director of Kaiser-Permanente Northern California Ethics Department, wrote in an Oct. 26, 2003 article entitled “Bush’s Painful Obsession with Medical Pot” published by the Oakland Tribune:

“It boggles my mind to think that our government officials are spending so much time and money to obstruct the use of medication that might actually help cancer patients tolerate their chemotherapy, AIDS patients gain a little weight, glaucoma patients suffer less.

We have yet to see any data from the Feds that explains why medicinal marijuana should be excluded from pharmacy shelves that already contain morphine and codeine — as well as a host of other drugs for conditions like heart disease or seizures that have longer potential side effect profiles.”

Mollie Fry, MD, a medical marijuana advocate, told ProCon.org in an Apr. 7, 2006 telephone interview:

“I took an oath to do no harm. If a doctor is willing to give you a prescription for a drug that is addictive or could kill you, then why should you not be able to choose a non-toxic drug like marijuana?”

Benjamin Rush, MD, former Surgeon General of the Continental Army and a signer of the U.S. Declaration of Independence, wrote the following (as per The Autobiography of Benjamin Rush, 1948) in 1789 for Philadelphia newspapers in favor of adopting the Federal constitution:

“Unless we put Medical Freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship… to restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of Medical Science.

All such laws are un-American and despotic, and have no place in a Republic … The Constitution of this Republic should make special privilege for Medical Freedom as well as Religious Freedom.”

William Alsup, United States District Judge for the Northern District of California, entered this order in the case of Conant v. McCaffrey on Sep. 7, 2000:“The government is permanently ENJOINED from:

[Editor’s Note: The order was upheld on a 3-0 vote by the 9th Circuit Court of Appeals on October 29, 2002.  The U.S. Supreme court declined to review this case, making this injunction permanent.]