From Think Progress
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.
And from Stop the Drug War:
Medical marijuana advocates have twice petitioned the DEA to consider rescheduling marijuana, citing increased knowledge about the medical efficacy of the herb. The first petition languished for more than two decades before the DEA rejected it; it took the agency one decade to reject the most recent one. In the intervening period, 16 states and the District of Columbia have moved to allow for the medical use of marijuana.
The DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana’s medical efficacy and that the plant has many “chemical components” that are not well understand. ASA and the individual plaintiffs appealed the decision in January. (Read the appeal brief here.)
In oral arguments Tuesday, ASA counsel Joe Elford charged that the DEA had ignored accumulating evidence of marijuana’s benefits, and so acted “arbitrarily and capriciously” in rejecting the rescheduling petition last year. Federal law requires the agency to take such evidence into account, he said. Elford also accused the Department of Health and Human Services of creating a Catch-22 for medical marijuana advocates by strictly limiting researchers’ access to marijuana, then arguing there is insufficient scientific evidence to merit rescheduling it.
“This game of ‘gotcha’ will continue indefinitely unless this court intervenes,” Elford told the three-judge panel.
Despite the federal government’s obstructionism, Elford was able to cite over 200 studies of marijuana’s medical efficacy. He argued they helped prove that Schedule I is inappropriate for marijuana, and that its continued placement in Schedule I both harms patients and hampers research.
Elford accused the government of “bias” in its refusal to reschedule marijuana. It ignores its medical benefits and hypes its danger, which is the only way “the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine, and opium,” he told the court.
But the DEA was prepared to defend its position. Agency attorney Lena Watkins told the court the agency had already considered the evidence and it found the argument that marijuana should be rescheduled unpersuasive.
“They don’t have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana,” Watkins argued.
Marijuana is scary stuff, she told the court. The plant has “adverse physical and psychological consequences” and has been “implicated in hundreds of thousands of hospital visits,” Wilkins said.
Wilkins did not acknowledge any of the logical caveats to those statements. For example, hospital emergency rooms routinely ask about substance use and that even a person who had used marijuana and then been injured by a drunk driver would be coded as a “marijuana-related” emergency room visit. Additional, actual marijuana-related emergency room visits typically are anxiety attacks or panic reactions, which are easily treated, and not life-threatening events like potentially fatal hard drug or alcohol overdoses.
“Marijuana is the most widely abused drug in America,” Wilkins added, noting that abuse potential is one of the criteria for placing a substance on the schedule.
[Editor’s note: the DEA uses “abused” interchangeably with “use”. So any use of marijuana is “abuse”.]
The court and the opposing attorneys also addressed the issue of standing. In rejecting the appeal of the 2002 DEA refusal to reschedule, the court never addressed the core issues of the case, instead throwing it out because the petitioner could not demonstrate direct harm from the government’s actions.
This time around, ASA has plaintiff Michael Krawitz, a disabled Air Force veteran from Virginia who is dependent on the Veterans Administration for his health care and who is prevented from even asking about medical marijuana to treat his pain. Krawitz is being directly harmed by federal policies and thus has standing, Elford argued.
“That seems pretty straightforward,” said Judge Harry Edwards.
But the DEA’s Watkins demurred, arguing that Krawitz could not legally obtain marijuana anyway because Virginia has not approved its medical use.
At the end of the day, it was unclear whether medical marijuana advocates had won their argument before the panel of veteran judges. The jurists appeared to question whether the courts had the right to second-guess the DEA.
“The real question is to what extent we have to defer to the agency,” said Judge Harry Edwards.
“Don’t we have to defer to their judgment?” asked Judge Merrick Garland. “We’re not scientists. They are.”
The pair of judges said they would not overturn the DEA’s decision unless they found it to be “arbitrary and capricious.” But that, of course, is precisely what Alford and the plaintiffs argued it is.