APA Newsletters
Fall 1999
Volume 99, Number 1

Background

The recent referendums in California and Arizona legalizing doctor-sanctioned smoking of marihuana for medicinal purposes have spurred renewed interest in the medical benefits of smoked marihuana and raised questions about the continued criminalization of marihuana possession and use. As in the recent debates about the legalization of physician-assisted suicide, there are ethical as well as larger pubic policy issues to consider.

A good place to begin is with the Comprehensive Drug Abuse Prevention and Control Act, popularly known as the Uniform Controlled Substances Act of 1970, which provides the basis for understanding the legal regulation of drugs in this country. Serving as a model for uniform state law, forty-five states have adopted this act in some form. The act divides "drugs or other substances" into five schedules. The classification affects manufacturing quotas, import restrictions, dispensing limits, and criminal penalties for unlawful trafficking. Tobacco and alcohol are not considered among the "drugs or other substances" that fall within the ambit of this act. Schedule I drugs include heroin, LSD, and marihuana, and they are described as follows:

(A) The drug or other substance has a high potential for abuse;

(B) The drug or other substance has no currently accepted medical use in treatment in the U.S.;

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Schedule II drugs include cocaine, morphine, and amphetamine-type stimulants:

(A) same as (A) above

(B) The drug or other substance has a currently accepted medical use in treatment in the U.S., or a currently accepted medical use with severe restrictions;

(C) Abuse of the drug or other substance may lead to severe psychological or physical dependence.

Although this is not the focus of my discussion, it should be noted that these criteria present several problems of interpretation. For example, how does one determine whether a drug has a "currently accepted medical use"? One answer is that the FDA must have an application to market it. However, absence of medical use cannot be inferred from the failure of the FDA to do so. Second, a drug may have an accepted medical use when sufficient numbers in the medical community believe it has such a use. However, suppose medical practitioners agree that the best treatment for drug addicts includes administration of the addictive drug under medical supervision, as in Sweden where heroin is prescribed to addicts. Surely drafters of the act did not intend to allow this. Moreover, how can a drug have an "accepted" medical use when it is illegal for doctors to prescribe it?

Assuming these problems can be resolved, should marihuana be changed from a schedule I to a schedule II drug and regulated accordingly, as many experts, including the editor-in-chief of the prestigious New England Journal of Medicine advocate? More generally, should the possession and use of marihuana under certain carefully specified conditions be decriminalized?

The Ethical Framework: Harms to Self and Others

How should one set out to justify the claim that the possession and use of marihuana ought to be a criminal offense?

I assume that a convincing defense of criminalization must demonstrate that such legislation is needed to prevent harm. I do not therefore take up the argument that the possession and use of marihuana poses a threat to the moral fabric of society because it is sinful or wicked, so should be criminalized. This sort of moralistic argument, used in the 1950s by the English jurist Lord Patrick Devlin in defense of the continued criminalization of homosexuality, is difficult to square with liberal political priniciples. Focusing, then, on harm, I will follow John Stuart Mill and distinguish between harm to self and harm to others:

• The least controversial rationale in favor of criminalization is that the conduct to be prohibited is harmful to others. The liberty of some must be restricted to protect the rights of others to be free of harm.

• A more controversial rationale is that drug use is harmful to the users themselves. This is more controversial because it is a paternalistic justification, and, as Mill and his followers have argued, we need strong reasons before one’s "own good, either physical or moral" can be "a sufficient warrant" for coercively interfering with a person’s own behavior.

This distinction between harm to self and harm to others is a distinction between rationale for laws, not between types of laws.

Using this as the ethical framework, the first step is to ask, what are the potential harms? The next question is, can the criminalization of marihuana possession and use be justified on the ground that such legislation protects self and/or others from harm?

Here, then, is a sampling of claims made about the harms of marihuana, culled from the book Marijuana Myths and Facts by Lynn Zimmer and John Morgan (New York: The Lindesmith Center, 1997).

Harm to Others:

(1) Marihuana causes crime;

(2) Marihuana use during pregnancy damages the fetus;

(3) Marihuana use is a major cause of highway accidents.

Harm To Self:

(1) Marihuana is highly addictive;

(2) Marihuana is a gateway drug, especially for young people, in that it leads to the use of harder drugs like heroin, LSD, and cocaine;

(3) Marihuana kills brain cells;

(4) Marihuana causes psychological impairment;

(5) Marihuana is more dangerous to the lungs than tobacco.

Two rejoinders have been made to this list of potential harms:

• there is little scientific support for these claims;

• even if there are potential harms, the benefits of marihuana use for a certain group of individuals may reasonably be thought to outweigh the risks of harm to self and others.

It is not my intention here to discuss whether prohibiting the recreational use of marihuana (among adults) through criminal legislation is justifiable. Some proponents of decriminalization want to make this argument, but I do not want to tred on this political minefield. Because I am particularly interested in the prohibition of marihuana possession and use for medicinal purposes, I focus on the second rejoinder. There are a number of questions that need to be answered:

• How should we identify those individuals who are permitted to use marihuana?

• What are the alleged benefits/risks of marihuana use to these individuals? Do the potential benefits outweigh the risks of harm to self and others?

• Do these individuals voluntarily accept the risks?

• What safeguards are in place to protect against substantial diversion of medically prescribed marihuana to the general population and to ensure the most favorable risk/benefit ratio for those to whom marihuana is prescribed?

• Will the legalization of marihuana for medicinal purposes send the message to American youth that marihuana use is unproblematic?

I will try to address some of these questions in what follows.

The Benefits of Marihuana Use for Seriously Ill Patients

There is abundant anecdotal evidence of the effectiveness of smoked marihuana in calming cancer patients’ chemotherapy-induced nausea and in helping patients with AIDS counteract weight loss and fight their disease, benefits that some patients cannot derive from conventional treatments. However, much of the purported benefit of smoked marihuana is not supported by double-blind randomized controlled clinical trials, the gold standard in research. In February of 1997, a panel of scientists organized by the National Institutes of Health stated that the potential therapeutic uses of marihuana deserve further research and that, based on what it admitted was scant data, the smoked drug is probably effective for some medical conditions.

Should marihuana be legally permitted to a specified group of seriously ill patients when the medical usefulness of marihuana for these patients has not been demonstrated by controlled studies? How much research is enough and how much credence should be given to anecdotal evidence?

Dr. Lester Grinspoon, and James B. Bakalar, leading proponents of the legalization of marihuana for medicinal use, see the following important role for controlled clinical trials:

No double-blind studies are needed to prove marihuana’s efficacy. Any astute clinician who has experience with patients . . . knows that it is efficacious to some degree for many people with various symptoms and syndromes. What we do not know is what proportions of patients with a given symptom will get relief from cannabis and how many will be better off with cannabis than with the best presently available medicine. Here large controlled studies will be helpful (Marihuana: The Forbidden Medicine. [ New Haven: Yale University Press, 1997], 227)

This by itself, Grinspoon and Bakalar acknowledge, would not be a sufficient reason to make marihuana a Schedule II drug. They argue, however, that marihuana should be legally available to these seriously ill patients because, in addition, "it costs so little to produce and the risks are so small" (229).

Balancing Risks and Benefits

Many experts agree that marihuana is less toxic than heroin or cocaine. But they also say that despite published studies, very little is known about the extent of marihuana’s physiological and psychoactive effects. Moreover, even proponents of legalization concede that marihuana may pose a risk of harm to an individual’s pulmonary system. There may also be serious adverse effects in the very patients for who medicinal marihuana is most commonly considered.

Even if one is not impressed by the abundant anecdotal evidence showing the efficacy of marihuana for certain conditions, and even if there may be significant risks associated with its use, access to marihuana by patients suffering from cancer and AIDS might be justified under the so-called nothing-to-lose rationale. This rationale was used by the FDA to permit the use and sale of AIDS drugs that were not yet approved but were undergoing clinical trials. The difference between these drugs and marihuana, however, is significant: there is a great deal of anecdotal evidence supporting the therapeutic efficacy of marihuana, whereas there was very little evidence for the efficacy of these unapproved AIDS drugs.

Given that cancer and AIDS patients are suffering from serious and terminal diseases, the possible dangers of marihuana use (e.g., pulmonary damage) cannot reasonably be expected to be much of a deterrent. The argument here is similar to the one used to counter worries about opioids prescribed to control the pain of terminally ill patients. But marihuana has also been proposed for the treatment of other serious but nonterminal illnesses, such as glaucoma, epilepsy, and arthritis. (The California law makes marihuana available for a wide range of medical conditions.) Should marihuana be legally available to such patients as well?

There is a political danger here. The longer the list of medical conditions for which marihuana may be legally prescribed, the more legalization of marihuana for medicinal use seems to verge on endorsement of the drug itself and the less compelling the claim becomes that the legalization of marihuana is for exceptional, narrowly defined circumstances. But the restriction of marihuana to terminally ill patients may still be ethically unacceptable because there is strong prima facie evidence of the efficacy of smoked marihuana for nonterminal patients suffering from certain medical conditions. Even if marihuana may have some adverse effects, arguably it should be left up to the patient in consultation, not his or her physician, to decide whether or not to take self-regarding risks, based on full information and in the context of an ongoing doctor-patient relationship. At the same time, of course, research on the benefits and potential dangers of smoked marihuana, and on the comparative efficacy of marihuana and other drugs, should be pursued.

This last argument presumes two things: the individuals who use marihuana for medicinal purposes not only know but voluntarily accept the risks and the risk of harm to others is not too great. The first assumption is critical, for if these patients do not voluntarily accept the risks, they do not meaningfully consent to them. And the second is critical because one is rarely justified in imposing serious risks of harm on others without their consent. Here I will limit myself to two brief observations. First, unlike tobacco, marihuana has a low potential for addiction. Second, there is either no scientific evidence or no consistent scientific evidence that smoking marihuana itself increases dangerousness to others.

Creating Safeguards

I have been suggesting that an ethical argument can be made for the legalization of marihuana for medicinal purposes on the grounds of compassion for suffering individuals, at least those whose suffering cannot be alleviated by conventional therapies. However, the acceptance of decriminalization ultimately hinges on whether there are reliable safeguards in place to identify the specific individuals for whom marihuana is medically indicated, to restrict its use to them, and to regulate the distribution and quality of the drug. As with physician-assisted suicide, the ethical and policy considerations must be distinguished. The issue thus is not merely whether there is an ethical argument supporting the dispensing of marihuana to particular individuals, but whether the practice, if socially sanctioned, would lead to abuse.

I suspect that many people are opposed to the decriminalization of marihuana for medicinal purposes because they have little faith that the practice can be regulated and monitored in such a way as to ensure that those who may medically benefit from marihuana actually do so, and that only these persons will be able to have access to it. Though the aim in making marihuana legally available would be to respond humanely to the needs of seriously ill patients, there is the fear that in all likelihood it will prove difficult, if not impossible, to keep marihuana out of the hands of substantial numbers of recreational users, even if it is made a prescription drug. Even among those who advocate more liberal social policies regarding recreational use of marihuana, most do not go so far as to propose that adolescents and adults have equal rights to use marihuana recreationally. They too would be concerned about possible abuse.

This is a pragmatic objection to limited decriminalization of marihuana possession and use, and it has both an empirical and an evaluative component: (a) It will be difficult if not impossible to prevent significant diversion of marihuana to the general population if the criminal ban against medicinal use of marihuana is lifted; and (b) all things considered, it would be a bad thing if this diversion occurred. I have already indicated that I do not intend to challenge the second claim. The focus must, therefore, be on the first, and only compelling sociological evidence, not philosophical argument, can establish it.

Sending the "Wrong Message"