Reefer madness: Legal and moral issues surrounding the medical prescription of marijuana

Bioethics

Volumn 14, Issue 1, 2000, Pages 16-41

  Barnes, R Eric ^a  

^a MOUNT HOLYOKE COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CANNABIS; PLACEBO; TETRAHYDROCANNABINOL;

DRUG EFFICACY; DRUG SAFETY; DRUG USE; GOVERNMENT; HUMAN; MEDICAL ETHICS; MEDICOLEGAL ASPECT; PRESCRIPTION; REVIEW; UNITED STATES;

EID: 0033983521     PISSN: 02699702     EISSN: None     Source Type: Journal    
DOI: 10.1111/1467-8519.00178     Document Type: Review

References (51)

1. Whenever I use the term 'marijuana', I intend to refer to the marijuana plant, and not to any synthesized drug (e.g., dronabinol). I will assume that those using marijuana for medicinal purposes will smoke it - as opposed to, say, eating it (which some small minority of medical marijuana users do).
2. In the remainder of this paper this parenthetical clause will be omitted, but it should be assumed to apply whenever I speak of legalizing the use of marijuana. There are many questions about how, precisely, to regulate the use, prescription, production, and distribution - but these details are beyond the scope of this essay.
3. Wasting syndrome is a condition where the patient is unable to maintain body mass and energy, typically due to lack of appetite. Citations given later on in the paper will further justify this claim, but my main reason for claiming that this is uncontroversial is that the Food and Drug Administration has approved a synthetic form of THC for use in treating nausea and wasting syndrome.
4. I do not intend to rely on any theory of natural rights, though such an approach is helpful to my argument. For the present purposes, I intend that a right is a significant prima facie claim that the government ought to respect and enforce ceteris paribus (i.e., taking into account the existence of other rights which may conflict) - though I will allow that rights claims may be overridden in extreme circumstances. The reader should also note that I am perfectly comfortable in limiting this right to treatments for serious ailments, in order to forestall any counter-examples regarding cosmetic surgery or some such thing. Nevertheless, I'll stick to the concise label 'safe and effective medical treatments'.
5. A drug on schedule 1 is considered to have no legitimate medicinal use, while a schedule 2 drug (like heroin) is considered to have some legitimate medical use. There is ongoing litigation to move marijuana from schedule 1 to schedule 2. The Supreme Court recently let stand a lower court's ruling in Carl Eric Olson v. Drug Enforcement Administration, which denied Olson's petition to reschedule marijuana. Since then, a class action lawsuit has been filed on behalf of patients who claim to need medical marijuana. The suit seeks to force the FDA to move marijuana to schedule 2.
6. As of February 1999, Dr. Donald Abrams of the University of California has been denied access to the government's supply of research marijuana and denied permission to import marijuana for a research study on the relative benefits of marijuana and oral THC (Marinol) on AIDS patients suffering from wasting syndrome. He has been prevented from conducting this study for at least 3 years due to the FDA and the DEA. The FDA was recently forced by court order to release a letter sent to them by the DEA 'encouraging' them to deny Dr. Abrams research proposal. This letter indicates that the DEA is overstepping its proper authority in attempting to influence the FDA's determination of the scientific merits of this research. [For more information on this see the web site www.natlnorml.org/medical/medmj.studies.shtml]
7. Since this paper was initially drafted, the National Institutes of Health (NIH) has initiated three clinical trial to evaluate the medicinal value of smoked marijuana compared to other available treatments, and a fourth study may soon be approved. However, researchers outside the NIH still appear to be having difficulty conducting research on medical marijuana.
8. It is interesting to note that since these laws were passed in AZ and CA the federal government has not brought federal criminal charges against anyone in these states related to medical marijuana, yet they have brought a civil suit against a San Francisco marijuana buyers club. The likely reasons for this are interesting, but they are beyond the scope of this paper.
9. In this paper I focus on marijuana's use in treating nausea (i.e., as an antiemetic) and wasting syndrome. In these cases, the effectiveness of THC and marijuana is not seriously disputed. However, marijuana has many other potential uses, some of which are better documented than others. These include it use as: a glaucoma treatment, an anticonvulsant, a muscle relaxant, an antiasthmatic, an antianxiety-antidepressant, an analgesic, an alcoholism treatment, an opiate withdrawal aid, and an antitumor medication. Some of these are surely a bad use of marijuana, but others are quite promising. Even so, the case is most clear with respect to marijuana's use treating nausea and wasting syndrome, so I will stick to these examples.
10. What I mean by 'serious harmful effects' is effects that are significantly more harmful than the use of alcohol, tobacco, or over-the-counter medications. See the citations at note 15 for the relevant citations in support of this claim.
11. The nausea suffered by cancer patients undergoing chemotherapy causes some to discontinue potentially life-saving treatment. Wasting syndrome in AIDS patients is a significant contributing factor in AIDS deaths.
12. See Richard E. Doblin and Mark A.R. Kleiman's 'Marijuana as Antiemetic Medicine: A Survey of Oncologists' Experiences and Attitudes' in Journal of Clinical Oncology, Vol 9, No 7 (July), 1991: pp 1314-1319; and the ensuing discussion notes in the same volume of that journal: pp 2079 & 2080. The report concludes that 48% of oncologists would prescribe smoked marijuana to some of their patients if it were legal, and 44% have recommended to some patients that they smoke marijuana illegally.
13. In addition to the study of oncologists' opinions cited in the previous note, clinical studies have supported the conclusion that marijuana is more effective for some patients. See: Levitt M, Fairman C, Hawks R, et al: 'Randomized double blind comparison of delta-9-tetrahydrocannabinol (THC) and marijuana as chemotherapy antiemetics' Proceedings of the American Society of Clinical Oncology 3:91, 1984 (abstr C-354). See also: Sallan, S.E., Zinberg, N.E., and Frei, D., 'Antiemetic Effect of Delta-9-tetrahydrocannabinol in Patients Receiving Cancer Chemotherapy' New England Journal of Medicine, 293(16): 795-797 (1975). See also: Vinciguerra, Vincent, et al 'Inhalation Marijuana as an Antiemetic for Cancer Chemotherapy' New York State Journal of Medicine (1988) 88: 525-527. In addition there have been several studies sponsored by individual states, and these also support the conclusion that marijuana is a more effective medicine for some patients. For a summary of these, see: Randell, Robert (ed.) 'Marijuana, Medicine and the Law' (vol 2) Washington DC: Galen Press, 1989, pp36ff.
14. In addition to the study of oncologists' opinions cited in the previous note, clinical studies have supported the conclusion that marijuana is more effective for some patients. See: Levitt M, Fairman C, Hawks R, et al: 'Randomized double blind comparison of delta-9-tetrahydrocannabinol (THC) and marijuana as chemotherapy antiemetics' Proceedings of the American Society of Clinical Oncology 3:91, 1984 (abstr C-354). See also: Sallan, S.E., Zinberg, N.E., and Frei, D., 'Antiemetic Effect of Delta-9-tetrahydrocannabinol in Patients Receiving Cancer Chemotherapy' New England Journal of Medicine, 293(16): 795-797 (1975). See also: Vinciguerra, Vincent, et al 'Inhalation Marijuana as an Antiemetic for Cancer Chemotherapy' New York State Journal of Medicine (1988) 88: 525-527. In addition there have been several studies sponsored by individual states, and these also support the conclusion that marijuana is a more effective medicine for some patients. For a summary of these, see: Randell, Robert (ed.) 'Marijuana, Medicine and the Law' (vol 2) Washington DC: Galen Press, 1989, pp36ff.
15. In addition to the study of oncologists' opinions cited in the previous note, clinical studies have supported the conclusion that marijuana is more effective for some patients. See: Levitt M, Fairman C, Hawks R, et al: 'Randomized double blind comparison of delta-9-tetrahydrocannabinol (THC) and marijuana as chemotherapy antiemetics' Proceedings of the American Society of Clinical Oncology 3:91, 1984 (abstr C-354). See also: Sallan, S.E., Zinberg, N.E., and Frei, D., 'Antiemetic Effect of Delta-9-tetrahydrocannabinol in Patients Receiving Cancer Chemotherapy' New England Journal of Medicine, 293(16): 795-797 (1975). See also: Vinciguerra, Vincent, et al 'Inhalation Marijuana as an Antiemetic for Cancer Chemotherapy' New York State Journal of Medicine (1988) 88: 525-527. In addition there have been several studies sponsored by individual states, and these also support the conclusion that marijuana is a more effective medicine for some patients. For a summary of these, see: Randell, Robert (ed.) 'Marijuana, Medicine and the Law' (vol 2) Washington DC: Galen Press, 1989, pp36ff.
16. In addition to the study of oncologists' opinions cited in the previous note, clinical studies have supported the conclusion that marijuana is more effective for some patients. See: Levitt M, Fairman C, Hawks R, et al: 'Randomized double blind comparison of delta-9-tetrahydrocannabinol (THC) and marijuana as chemotherapy antiemetics' Proceedings of the American Society of Clinical Oncology 3:91, 1984 (abstr C-354). See also: Sallan, S.E., Zinberg, N.E., and Frei, D., 'Antiemetic Effect of Delta-9-tetrahydrocannabinol in Patients Receiving Cancer Chemotherapy' New England Journal of Medicine, 293(16): 795-797 (1975). See also: Vinciguerra, Vincent, et al 'Inhalation Marijuana as an Antiemetic for Cancer Chemotherapy' New York State Journal of Medicine (1988) 88: 525-527. In addition there have been several studies sponsored by individual states, and these also support the conclusion that marijuana is a more effective medicine for some patients. For a summary of these, see: Randell, Robert (ed.) 'Marijuana, Medicine and the Law' (vol 2) Washington DC: Galen Press, 1989, pp36ff.
17. Whenever I speak of 'the government' the reader should understand that I refer to state and federal governments treated as a whole.
18. For example, see: Pharmacological Reviews, 'Health Aspects of Cannabis', 1986, 38:1, p.1-20 (esp. 17). Harvard Medical School Mental Health Letter, 'Marijuana', by Lester Grinspoon, vol.4, no.5, Nov. 1987. Ganja in Jamaica: A Medical Anthropological Study of Chronic Marijuana Use, New York: Anchor Books, 1975. The LaGuardia Report, reprinted in The Marijuana Papers, Indianapolis: Bobbs-Merrill, 1966. Journal of the American Medical Association, 'Marijuana as Medicine: A Plea for Reconsideration', editorial, 273.23 (1995): 1875-76. Handbook of Medical Toxicology (entry on marijuana by Irvin N. Heifetz and Marcus H. Harding), Boston: Little, Brown and Company, 1993. The meaning of 'serious' in the present context was explained in note 10.
19. For example, see: Pharmacological Reviews, 'Health Aspects of Cannabis', 1986, 38:1, p.1-20 (esp. 17). Harvard Medical School Mental Health Letter, 'Marijuana', by Lester Grinspoon, vol.4, no.5, Nov. 1987. Ganja in Jamaica: A Medical Anthropological Study of Chronic Marijuana Use, New York: Anchor Books, 1975. The LaGuardia Report, reprinted in The Marijuana Papers, Indianapolis: Bobbs-Merrill, 1966. Journal of the American Medical Association, 'Marijuana as Medicine: A Plea for Reconsideration', editorial, 273.23 (1995): 1875-76. Handbook of Medical Toxicology (entry on marijuana by Irvin N. Heifetz and Marcus H. Harding), Boston: Little, Brown and Company, 1993. The meaning of 'serious' in the present context was explained in note 10.
20. For example, see: Pharmacological Reviews, 'Health Aspects of Cannabis', 1986, 38:1, p.1-20 (esp. 17). Harvard Medical School Mental Health Letter, 'Marijuana', by Lester Grinspoon, vol.4, no.5, Nov. 1987. Ganja in Jamaica: A Medical Anthropological Study of Chronic Marijuana Use, New York: Anchor Books, 1975. The LaGuardia Report, reprinted in The Marijuana Papers, Indianapolis: Bobbs-Merrill, 1966. Journal of the American Medical Association, 'Marijuana as Medicine: A Plea for Reconsideration', editorial, 273.23 (1995): 1875-76. Handbook of Medical Toxicology (entry on marijuana by Irvin N. Heifetz and Marcus H. Harding), Boston: Little, Brown and Company, 1993. The meaning of 'serious' in the present context was explained in note 10.
21. For example, see: Pharmacological Reviews, 'Health Aspects of Cannabis', 1986, 38:1, p.1-20 (esp. 17). Harvard Medical School Mental Health Letter, 'Marijuana', by Lester Grinspoon, vol.4, no.5, Nov. 1987. Ganja in Jamaica: A Medical Anthropological Study of Chronic Marijuana Use, New York: Anchor Books, 1975. The LaGuardia Report, reprinted in The Marijuana Papers, Indianapolis: Bobbs-Merrill, 1966. Journal of the American Medical Association, 'Marijuana as Medicine: A Plea for Reconsideration', editorial, 273.23 (1995): 1875-76. Handbook of Medical Toxicology (entry on marijuana by Irvin N. Heifetz and Marcus H. Harding), Boston: Little, Brown and Company, 1993. The meaning of 'serious' in the present context was explained in note 10.
22. For example, see: Pharmacological Reviews, 'Health Aspects of Cannabis', 1986, 38:1, p.1-20 (esp. 17). Harvard Medical School Mental Health Letter, 'Marijuana', by Lester Grinspoon, vol.4, no.5, Nov. 1987. Ganja in Jamaica: A Medical Anthropological Study of Chronic Marijuana Use, New York: Anchor Books, 1975. The LaGuardia Report, reprinted in The Marijuana Papers, Indianapolis: Bobbs-Merrill, 1966. Journal of the American Medical Association, 'Marijuana as Medicine: A Plea for Reconsideration', editorial, 273.23 (1995): 1875-76. Handbook of Medical Toxicology (entry on marijuana by Irvin N. Heifetz and Marcus H. Harding), Boston: Little, Brown and Company, 1993. The meaning of 'serious' in the present context was explained in note 10.
23. For example, see: Pharmacological Reviews, 'Health Aspects of Cannabis', 1986, 38:1, p.1-20 (esp. 17). Harvard Medical School Mental Health Letter, 'Marijuana', by Lester Grinspoon, vol.4, no.5, Nov. 1987. Ganja in Jamaica: A Medical Anthropological Study of Chronic Marijuana Use, New York: Anchor Books, 1975. The LaGuardia Report, reprinted in The Marijuana Papers, Indianapolis: Bobbs-Merrill, 1966. Journal of the American Medical Association, 'Marijuana as Medicine: A Plea for Reconsideration', editorial, 273.23 (1995): 1875-76. Handbook of Medical Toxicology (entry on marijuana by Irvin N. Heifetz and Marcus H. Harding), Boston: Little, Brown and Company, 1993. The meaning of 'serious' in the present context was explained in note 10.
24. The US government has operated a small farm on which they grow marijuana for research uses and for distribution to a very small number of patients (at most 8), most of whom suffer from glaucoma, under the compassionate IND program. The marijuana IND program no longer accepts new members.
25. Allow me to assure readers that I am not selectively ignoring research that does not support my conclusions. I was unable to find any research which supported the claim that marijuana has significant harms.
26. If the expense were prohibitive, then marijuana would be eligible for classification as an orphan drug, which provides substantial tax credits to drug companies to offset such expenses.
27. See note 16 concerning government production of marijuana.
28. It is worth noting that existing drug companies are hardly excited about selling medical marijuana, much less spending the money necessary to be able to market this drug. Nevertheless, in the last several years small companies have emerged (in states that have legalized medical marijuana) that sell marijuana for medicinal use. My point is that someone will be willing to market medical marijuana. And if the problem is that such a company would not have the money necessary to gain government approval, that is what the Orphan Drug Act was intended to overcome, so that is not a particular problem.
29. Double-blind testing is where neither the patient nor the doctor knows if a particular patient is receiving the experimental drug or merely the placebo.
30. See 'Therapeutic Issues of Marijuana and THC' by J. Thomas Ungerleider MD, and Therese Andrysiak RN, The International Journal of the Addictions, 20(5), 1985, p.691-699 (esp. 697).
31. In particular see 'Inhalation Marijuana as an Antiemetic for Cancer Chemotherapy', by Vinciguerra et al, The New York State Journal of Medicine, October 1988, p.525-527. But also see the other citations listed in footnote 13.
32. ibid.
33. Of course, by 'anecdotal evidence' I don't mean rumored stories of its success, but rather either patients' documented reports that it relieves their suffering that are not confirmed by independent measurement, or doctors' reports that their patients prefer marijuana.
34. The most comprehensive study of medical marijuana (commissioned by a White House administration that is open against the use of medical marijuana) concludes that, for a some (significant) subpopulation of patients, until new drugs are developed 'there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana, such as pain or AIDS wasting.' This study recommends finding some way of allowing these people to legally use marijuana. It also recommends guidelines for the short-term use of marijuana, and it acknowledges that under current conditions (i.e., given the other available treatments) there are patients other than those with chronic conditions that should be allowed to use marijuana. See 'Marijuana and Medicine: Assessing the Science Base', Stanley J. Watson et al, (a study by the Institute of Medicine), 1999, Washington DC: National Academy Press.
35. The federal government's own study of medical marijuana clearly states that there is no good evidence of a causal relationship between recreational use of marijuana and the subsequent use of stronger recreational drug. That is to say, the 'gateway drug' hypothesis is unfounded. Moreover, they conclude that the issue of whether legalization would increase recreational use of marijuana 'should not be a factor in evaluating the therapeutic potential of marijuana'. See 'Marijuana and Medicine: Assessing the Science Base', Stanley J. Watson et al, (a study by the Institute of Medicine), 1999, Washington DC: National Academy Press.
36. I already granted (also for the sake of argument) the claim that there are harms which result from recreational use which provide the government with a legitimate interest in limiting recreational use of marijuana. Although, this too is a contentious claim.
37. The concept of a catastrophe is somewhat vague, which is not a problem for my purposes, but it is also a somewhat relative concept. A catastrophe in car mechanics is different from a catastrophe in global politics. In general a catastrophe will be understood in proportion to the end of one's action. So, if a small city's school system adopted a new anti-drug program that actually caused 1000 teenagers to become recreational marijuana users, that might reasonably be considered a catastrophic consequence. Nevertheless, in relation to a national medical policy such as the rescheduling of marijuana and its approval for prescription, 1000 teenagers becoming recreational users could not possibly count as catastrophic. I mean by 'catastrophic' a negative consequence that is of a significantly higher magnitude than the end of the action, which in this case is the treatment of a large number of patients (on the order of 10,000) with serious medical conditions.
38. Perhaps this is due to the desperation experienced by terminally ill patients, and their unwillingness to accept that a new treatment will do them no good. The point is that those who use the treatment illegally are the ones being harmed.
39. Note that this allows that such an action may be justified in some circumstances. In particular, I want to allow that direct justification may be appropriate when dealing with catastrophic consequences and perhaps also when dealing with irreconcilable rights claims.
40. The final clause 'behaving as it should' makes clear that I do not include as justified the inevitable mistakes of an otherwise just institution.
41. John Rawls, 'Two Concepts of Rules', 1955, Philosophical Review, 64, p.3-32.
42. See my 'Constraint Games and the Orthodox Theory of Rationality' Utilitas, Vol. 9, Issue 2, November 1997.
43. A theory is self-effacing if one of its recommendations is that people not employ that theory (under certain circumstances).
44. Mill's Harm Principle is a fundamental element in his political theory. It states: 'the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.' (Mill, On Liberty, Chapter 1).
45. Actually, for my purposes in this paper, I needn't be able to defend that the ideal government would be a democracy. Since the question is really whether or not our government should legalize medical marijuana, and not whether the ideal government would if that turned out to be radically different from our own.
46. Bernard Williams, 'A Critique of Utilitarianism', 1973, in Utilitarianism: For and Against, Cambridge University Press.
47. See, for example, R.M. Hare, Moral Thinking: Its Levels, Method, and Point, 1981, Oxford University Press.
48. Quite recently, the federal government has begun to allow the NIH to conduct some clinical trials which compare smoked marijuana with alternative treatments.
49. On September 6, 1988, Francis L. Young (Administrative Law Judge) issued a ruling recommending that marijuana be rescheduled to schedule two of the Controlled Substances Act (CSA). (United States Department of Justice, Drug Enforcement Administration, Docket no. 86-22) Judge Young ruled that marijuana did have an accepted medical use in treatment, and so did not belong in schedule one by the standards of the CSA. This ruling was subsequently overturned.
50. California's experience with legalization makes these problems quite clear. Because the traditional methods of distribution could not be used, unauthorized individuals regularly obtained marijuana and there were no reliable assurances of drug quality or potency.
51. The actions of state legislatures will obviously be conscientious, so long as they are not hopelessly corrupt. We have no reason to doubt that they will act deliberately, carefully, and according to their consciences. It also seems clear that any state which does legalize medical marijuana will justify its objection to the federal law by an appeal to values which it shares with the federal government (e.g., unnecessary suffering is bad, people have a right to safe and effective medical treatments).