Medical Cannabis: The Ethical Conundrum Associated With Recreational 'Legalization' of Marijuana

Michael E. Schatman, PhD


November 15, 2012

What Impact Will "Legalization" Have?

On November 6, 2012, citizens of Colorado and Washington State voted in favor of referenda to legalize marijuana for nonmedical purposes. Voters in Oregon chose to reject a similar referendum, although only narrowly. Immediately, questions began to arise about how the federal government would respond to the passage of these referenda.[19] The day after the election, a representative from the US Department of Justice stated that enforcement of the federal Controlled Substances Act would "remain unchanged," and that he expected the Obama administration to seek to block state-level legalization measures.[20] In the week following the election, however, the administration did not issue additional information regarding how it would handle Colorado's and Washington's usurpation of its authority pertaining to its law prohibiting recreational marijuana use.

As early as 2010, it was speculated that the federal government would enforce the Controlled Substances Act against "all cultivators, distributors, retailers and users of marijuana, including those who use it for medical purposes" in retaliation against recreational legalization of marijuana.[21] Attorney General Holder issued a stern warning several weeks prior to California's 2010 unsuccessful recreational marijuana initiative vote that federal authorities would aggressively prosecute marijuana laws should the initiative pass.[19] It has been suggested that this warning from the Attorney General actually caused voters to reject the initiative.[22] Of note, this vote on recreational cannabis legalization coincided with the initiation of the Department of Justice's assault on medical cannabis dispensaries in California. Did this assault represent retaliation against a state that had the audacity to blatantly challenge its authority? And, if so, were not patients whose impeded access to medical marijuana the victims of the Department of Justice's action?

Few realize that the US Attorney General has the authority to reschedule any medication and is empowered to initiate proceedings to do so on his own. However, the Attorney General is required to consult with the Secretary of Health and Human Services in the rescheduling process, and the Secretary's findings in regard to the medical and scientific evaluation of the substance are considered binding.[23] Should the Attorney General initiate the process of rescheduling cannabis from a Schedule 1 to a Schedule 5 substance, the Department of Justice could potentially avoid confrontation and/or the humiliation associated with a glaring violation of the Controlled Substances Act by the rogue states of Colorado and Washington. Unfortunately, in a suit brought against the DEA by the National Organization for the Reform of Marijuana Laws in the late 1970s,[24] the Chief Administrative Judge for the DEA determined that marijuana belonged in Schedule 2, and Congress and the DEA have continued to maintain that the drug has a high abuse potential. Certainly, growing acceptance in the medical community regarding the addictive quality of marijuana[25,26] makes reclassifying cannabis to Schedule 5 status unlikely.

According to the Ethics Code of the American Medical Association, "In general, when physicians believe a law is unjust, they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal obligations."[27] This ethical opinion can be interpreted to enjoin physicians to fight for the legalization of medical cannabis. However, if the recent passage of referenda legalizing recreational marijuana poses a threat to patients whose suffering is ameliorated through the use of medical cannabis, does this ethical opinion also not enjoin physicians to challenge efforts to defy the Department of Justice? For the most part, the Obama administration has adopted a "don't ask, don't tell" position in regard to states' legalization of medical cannabis. Let us avoid awakening a "sleeping giant" at a time when our patients have so much to lose.