Overdue Process: Why Denial of Physician-prescribed Marijuana to Terminally Ill Patients Violates the United States Constitution
| Publication year | 1998 |
I. Introduction
Father Earle Rowell once called marijuana the "weed of madness."(fn2) Given the nature of the current debate over medicinal marijuana use in the United States, his statement seems prophetic. Patients seriously ill with cancer, multiple sclerosis, and AIDS are being denied access to pain relief recommended by licensed physicians.(fn3) The federal government is threatening to imprison these physicians and their patients if marijuana is prescribed to them. This is so even in states where marijuana has been legalized for medical use by popular initiative.(fn4) One state legislature has overturned a popular initiative on marijuana use that was adopted by a more than 2-1 margin.(fn5) Whatever one's position on the prospect of legalized medicinal marijuana use, one can hardly support the current state of affairs. Change, one way or another, is a legitimate objective. The question is how this change can and should be implemented, and for what reasons. To examine this issue, consider the following hypothetical.
William Cohen is an attorney.(fn6) Before law school, he was a newspaper columnist and reporter, as well as the managing editor of a small aviation magazine. He was also an avid backpacker, fly fisherman, and horseback rider. Once, when he was covering a news story about a woman accused of sexual molestation, he was so sure that she was innocent and did not get a fair trial that he decided to become an attorney. After graduating from law school, he became heavily involved in civil rights work and won a nine million dollar verdict in an employment discrimination case. Through it all, Cohen also carried with him the knowledge that he had a terminal disease.
While still a reporter, Cohen was diagnosed with bone cancer. It started when he developed a sore tailbone from horseback riding. Eventually, surgeons discovered and removed a tumor from the base of his spine. For awhile, it looked as if he had beaten the cancer, but it returned while he was in law school. The result was eight additional surgeries and ongoing chemotherapy. The cancer caused intense pain, while the chemotherapy led to violent bouts of nausea. Extreme weight loss also followed. Sometimes, Cohen was so debilitated that he ended up on the floor in his own excrement and vomit.
Due to these symptoms, Cohen's oncologist, Dr. Allen, who is well respected in his field, prescribed him Marinol, a synthetic form of THC, the active ingredient in marijuana. No other drugs were working to kill the pain or give Cohen an appetite. The Marinol did help control his nausea, but William usually could not swallow the pills to begin with. Additionally, the effects of the pills were so strong that they knocked him out for fourteen hours or more. Cohen asked his oncologist if he could smoke marijuana instead of ingesting the synthetic THC pills. His oncologist agreed that this was the best option, but it was also illegal. While he wanted to write Cohen a prescription for leaf marijuana, to do so would make both men criminals and could lead to the loss of rights to practice law or medicine as well as a term in prison. This is because federal law does not recognize the right to prescribe marijuana for medical purposes.
Under the Federal Drug Abuse Prevention and Control Act of 1970, marijuana is a Schedule I substance.(fn7) This means that it has a high potential for abuse, that there is a lack of accepted safety for the use of the drug under medical supervision, that the drug has no currently accepted medical use in the United States, and that it is not available by medical prescription. Along with marijuana, Schedule I contains heroin and LSD.(fn8)
This Comment is based on the premise that, were William Cohen to attack the constitutionality of marijuana's classification as a Schedule I substance, the appropriate result under the current substantive due process jurisprudence of the United States Supreme Court would conclude that this classification violates the Due Process Clauses of the Fifth and Fourteenth Amendments.(fn9) Since marijuana's placement in Schedule I prevents any form of medical marijuana use, it denies a limited class of seriously ill individuals the right to effective pain relief and proper consultation with a physician. This impinges on fundamental rights held by William Cohen and others without a compelling state interest to justify such an intrusion.(fn10)
Section II of the Comment will begin with a brief history of the medical use of marijuana in western culture and the United States. It will then examine the existing federal statutory scheme governing the use of marijuana and conclude with a look at current beliefs about the medical value of marijuana. Section III will analyze previous attempts to collaterally attack the scheduling of marijuana through the courts and show why those efforts have generally failed. Section IV will perform a substantive due process analysis of William Cohen's case and submit that Mr. Cohen has a fundamental right to consult with his physician to ease severe pain. It will then balance this right against the relevant state interests, which it will suggest are illusory. Finally, Section V will examine the policies supporting judicial, as opposed to legislative, solutions to the medicinal marijuana problem and will conclude that judicial action is the only method likely to bring about necessary change.
II. The History of Medicinal Marijuana Use and Regulation in Western Culture and the United States
This section will discuss the history of marijuana's medicinal use and legal regulation. It will demonstrate that there is an historical basis for marijuana as medicine, and that the current status of marijuana as a Schedule I substance is a politically-based, and not a medically-based, decision.
Marijuana has a history of medicinal use arguably dating back thousands of years. In ancient China, for example, Han Dynasty writers included it in a medical treatise dating back to the fourth century B.C.(fn11) A noted early Chinese physician, Hua T'o, used hemp as an anesthetic.(fn12)
During the nineteenth century, marijuana was also used for medicinal purposes in Great Britain, with Queen Victoria apparently among the patients who utilized it.(fn13) In 1893, in response to questions in the House of Commons about marijuana usage in India, the Indian Hemp Drugs Commission convened to study marijuana usage and its effects. After a year's worth of extensive hearings, the commission concluded, among other things, that while extensive use of marijuana could be harmful, small doses could be beneficial.(fn14)
In the United States, the medical qualities of marijuana began to be recognized around 1840.(fn15) Throughout the nineteenth century, it was used as an anticonvulsant and an analgesic as well as to treat rheumatism, epilepsy, and tetanus.(fn16) In 1850, marijuana was added to the United States Pharmacopoeia.(fn17) Perhaps it should come as no surprise then that when America passed its first major drug laws of the twentieth century, marijuana was not among the items taxed or regulated.(fn18) This changed with the arrival of Harry Anslinger as the head of the U.S. Narcotics Bureau in 1930, the same year that the Bureau became an independent unit of the Treasury Department. Anslinger was instrumental in the passage of the Marijuana Tax Act of 1937.(fn19)
Playing upon the marijuana frenzy, fueled in the late '20s and early '30s by Father Rowell, who traveled across the country destroying hemp fields and preaching against marijuana use,(fn20) Anslinger threw his support behind several marijuana bills introduced to the 75th Congress. Congressional committees were told how marijuana and hashish had ravaged the ancient Muslim world, how studies in Tunisia showed that marijuana caused violent crimes, addiction, sterility, and insanity, and how high school students used marijuana with "deadly" effects.(fn21)
Significantly, the American Medical Association (AMA) opposed the passage of the Tax Act.(fn22) AMA spokesman Dr. William C. Woodward told the House of Representatives that marijuana did in fact have valid medical uses. He demanded to know why hard evidence of the sensational allegations of crime and addiction had not been produced. Dr. Woodward's testimony was largely disregarded, however, and the Tax Act became law.(fn23) Its ultimate impact was to impose registration duties and record-keeping requirements that made marijuana more expensive and more difficult for physicians to prescribe.(fn24) In 1942, marijuana was removed from the United States Pharmacopoeia.(fn25)
Another result of the Tax Act was the near impossibility of further research on the medicinal effects of marijuana. Doctors or scientists had to obtain permits in...
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