Marijuana as Medicine:
A Recent History

III. Inheriting Bad Policy

Current Federal Policy 

Richard Nixon was president when marijuana was made a Schedule I drug under the federal Controlled Substances Act. As such marijuana is defined in law as a drug "with no accepted medical use in treatment in the U.S." 

For twenty-two years FDA, by erecting regulatory barriers to cogent scientific and medical evaluations, has assisted DEA in maintaining the medical prohibition. For example, FDA officially classifies marijuana, a natural plant with an ancient medical heritage, as a New Drug.(25) 

Gerald Ford was president when a federal court ruled a glaucoma patient's use of marijuana was not criminal, but an act of "medical necessity." In part, federal Judge James Washington ruled, "It is unlikely that [marijuana's] slight, speculative and undemonstrable harm could be considered more important than defendant's right to sight."(26) Concurrent with the court's verdict, this man also became the first American to secure legal, medical access to FDA-approved supplies of pre-rolled marijuana cigarettes. 

Jimmy Carter was president when FDA, in the wake of a lawsuit by this glaucoma patient, created the Compassionate IND system for medical marijuana.(27) 

Demands for Change 

For twenty years the medical prohibition has been under sustained scientific, medical, legal, social and political challenge. In the course of this protracted debate the courts, a majority of the state legislatures, the press and the American people have rejected the medical prohibition. (See The Medical Prohibition Has No Support) 

Eroding societal support for the medical prohibition reached its zenith in 1988 when DEA's chief administrative law Judge Francis L. Young condemned the federal prohibition as "unreasonable, arbitrary and capricious." After two years of Court-ordered public hearings, Judge Young ruled DEA should immediately reschedule marijuana to Schedule II, and recommended marijuana be made prescriptively available for the medical treatment of persons afflicted by life- or sense-threatening disorders. 

Anticipating the bureaucratic response, Judge Young noted: 

"There are those who, in all sincerity, argue that the transfer of marijuana to Schedule II will `send a signal' that marijuana is `Ok' generally for recreational use. This argument is specious.... The fear of sending such a signal cannot be permitted to override the legitimate need ... of countless sufferers for the relief marijuana can provide when prescribed by a physician. . . ." (28) 

Medical Prohibition Under Pressure 

Judge Young's historic verdict fractured the bureaucratic facade of unqualified resistance and greatly accelerated patient demands for access to care. These demands took on even greater urgency in the early 1990s when FDA was compelled to expand the nation's Compassionate IND program for medical marijuana to include HIV+ people and Americans afflicted by neurologic disorders like paralysis, multiple sclerosis, and muscular dystrophy. (29) 

Federal drug agencies were whipsawed by these accelerating demands for care. DEA steadfastly maintained marijuana has no medical value even as FDA authorized marijuana's compassionate medical use for the treatment of an expanding number of life- and sense-threatening diseases. By April 1991, this profound contradiction in federal policy brought the medical prohibition into crisis. 

The Collapse of Compassion 

This crisis in policy reached critical mass in April 1991, when the U.S. Court of Appeals rejected DEA's standards for scheduling marijuana.(30) In so ruling the Court focused on the central contradiction in federal policy: how could DEA argue marijuana is medically useless if FDA routinely authorized marijuana's therapeutic availability in compassionate programs of medical care? 

Bush Blunders 

The Bush Administration foolishly sharpened public awareness of this long unresolved problem in June 1991, when PHS Chief James O. Mason abruptly and arbitrarily terminated the nation's fourteen year-old Compassionate IND program for medical marijuana. 

Confronted by a rising tide of demands for licit access to medical marijuana, alarmed by DEA's rapidly eroding legal position, and under escalating bureaucratic pressure to "do something," the Bush Administration panicked. PHS Chief Mason initially cited the "surge in new applications" as his reason for terminating the long-standing program. (31) 

Mason's announcement caught policy-makers in the White House off-guard. It also triggered intense, universally negative editorial reaction. People with glaucoma, AIDS and other serious illnesses besieged the White House, Congress and the bureaucracy. This fierce, sustained public reaction stunned the Bush White House. (32) 

For the next nine months, while desperately ill Americans suffered, the Bush Administration was torn by protracted inter-bureaucratic debate. 

Events in the real world only deepened the Bush Administration's confusion. 

Administration officials, traumatized by these external events, wandered through indecisive policy debates marked by months of private meetings attended only by bureaucrats and political appointees. The obvious chaos solidified public impressions that federal drug policy was being driven by ideology and not by concern for the needs of seriously ill Americans. 

In a futile attempt to escape this public censure the White House Office of National Drug Control Policy actually joined the chorus of outrage. In January 1992, White House officials called PHS Chief Mason's actions "unconscionable" and bluntly told PHS "people are suffering" because of bureaucratic delays in the delivery of FDA-promised supplies of medical marijuana. The White House promptly leaked this scathing letter. (35) 

It was too late. In March 1992, War on Drugs hardliners in the bureaucracy won. Bush killed FDA's Compassionate IND program for medical marijuana.(36) FDA dumped hundreds of Compassionate IND applications into the trash and scores of patients were arbitrarily denied promised access to medical care. Only a handful of patients -- those already receiving medical marijuana -- were spared. 

Editorial and news reaction to the March 1992 announcement was even harsher and more sustained than in June - September 1991.(37) PHS efforts to justify the policy shift were subjected to outright ridicule. To make matters worse, high officials in PHS, FDA, NIDA and the White House -- in off-the-record comments -- routinely told reporters they strongly opposed the Bush Administration's decision to terminate the Compassionate IND program for medical marijuana. 

The most scathing comments, however, came from the seriously ill. One Minneapolis AIDS patient, Tim Braun, captured the public mood when he told the Associated Press, 

"I think it's a decision. . . made by some bozos that don't get their fat duffs out of the office and ask the doctors who work with patients like this, talk to the patients who are using it, talk to the families and the friends that see the difference." (38) 

Braun received FDA approval for marijuana therapy in December 1990. For nearly eighteen months, while bureaucrats bickered, Tim Braun waited for his FDA-promised marijuana. Often he could not obtain enough marijuana off the streets to meet his medical needs. During these times Braun always lost weight. At one point he lost 60 pounds. 

When an AP reporter told Tim Braun about the PHS decision to kill the Compassionate IND program Tim prophetically said, "They're giving me a death sentence."(39) Tim Braun, 44, died two months later without ever receiving the compassionate care his government had promised to provide. 

Critics charge Bush killed the program in a craven attempt to appease War on Drugs hardliners and homophobic elements of the religious right.(40) Destroying the nation's marijuana-as-medicine program may have appealed to a few cultural zealots in Bush's narrow base, but "killing compassion" fueled the already wide-spread public perception Bush was "out of touch," "uncaring," and "too ideological" to remain in office. (41) 

Aftermath 

Bush's politically maladroit move to kill the Compassionate IND program has galvanized patients, physicians and drug law reform advocates. As a result, the incoming administration faces an active, aggressive and broad-based coalition ready to amplify deep-seated public demands for an end to the medical prohibition. 

By far the most legitimate and powerful voices in this emerging coalition belong to seriously ill Americans who can command media attention. A review of media from June 1991 through June 1992 underscores just how decisively a few well-spoken patients "won" the public debate against George Bush. Significantly, editorial and press reaction to Bush's medical prohibition was universally negative, often hostile.(42)