Could Iowa become the 14th state to legalize medical marijuana?
In 1990, Carl Olsen tells me, he had an epiphany. It’s the year that he met George McMahon at a rally outside the state Capitol building, and McMahon was smoking pot. “I had never met a person that was legally smoking marijuana before,” Olsen recalls. “I just thought that’s got to be like a sign from heaven.” Before the encounter, Olsen himself had been smoking pot for years as a religious sacrament that he believed staved off illness. But the meeting inspired him to give up the habit to fight on behalf of those who were already ill and, unlike McMahon, had no choice but to break the law to use marijuana as medicine.
McMahon is a resident of Livermore, Iowa, and today one of only four surviving patients in the National Institute on Drug Abuse’s Compassionate Investigational New Drug program. Compassionate IND began in 1978 after Washington, D.C., resident Robert Randall successfully sued the federal government two years earlier for the right to use marijuana to treat his glaucoma, using a defense of common law necessity. Randall had developed the condition in his teens, and in the ‘70s, when he was a young adult, a doctor told that him he would lose his sight within a few years. But the pot helped to slow the deterioration of his eyes, and he maintained partial vision until dying of AIDS in 2001. As a result of his efforts, Randall secured his place in history as the modern-day father of medical marijuana in the United States; and, in 1990, McMahon secured his right to 300 marijuana cigarettes each month, delivered in a tin can from the federal government, free of charge.
The George H.W. Bush administration shut down Compassionate IND in March 1992, because, it is widely assumed, of the increasing number of AIDS patients applying for admittance. But McMahon, now 59 years old, still receives his monthly supply. He uses it to treat his nail patella syndrome, a rare genetic disorder that attacks his kidneys and immune system and has deformed parts of his body – he lost all his teeth before the age of 21 and has underdeveloped kneecaps and cracked, yellowed fingernails. Since childhood, McMahon has spent long stretches of his life severely ill, and he’s been at death’s door multiple times (and clinically dead five times).
Two decades ago at the University of Iowa hospital, before he was a NIDA guinea pig, McMahon was attached to feeding tubes because he’d been unable to eat for at least two weeks. One day, he was told that he probably wouldn’t live through the night. Then someone stopped by his room and offered him a joint that had been intended for a dying cancer patient down the hall who declined it. Later that night, McMahon smoked it and regained his appetite. Ten days later, he left the hospital. In 1997, he started touring the country to tell his life story, something he is no longer physically able to do. He’s co-authored a book titled Prescription Pot. He played an active role in California’s Proposition 215, the ballot initiative that legalized medical marijuana there in 1996. He even owns a certificate of heroism signed by drug war crusader Nancy Reagan that was awarded to him in 1990 through the President’s Drug Awareness Program.
Since first meeting McMahon, Olsen, a Des Moines website developer, researched Iowa and federal law, documented court cases, and co-founded Iowans for Medical Marijuana with McMahon, all the while waiting for a compelling reason to challenge Iowa’s medical pot prohibition. Olsen saw his first big break with California voters in ’96. Since Iowa’s enactment of the Controlled Substances Act of 1971, the drug has remained a Schedule I substance, which by the language of the Iowa Code declares that marijuana has “high potential for abuse” and “no accepted medical use in treatment in the United States,” or “lacks accepted safety for use in treatment under medical supervision.”
Although “no accepted medical use in treatment in the United States” was almost certainly written to reflect federal interpretation – the wording is nearly identical – Olsen figured that it could be taken to mean that because California had accepted medicinal value in marijuana, Iowa’s pot classification was now unlawfully inaccurate. (Since California, 12 other states have followed suit: Alaska, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington.) In 2006, Olsen found the other piece of the puzzle to his legal argument. That year, the U.S. Supreme Court ruled in Gonzales v. Oregon that the U.S. attorney general had to respect Oregon’s Death with Dignity Act, which allows physicians to prescribe patients lethal doses of controlled substances to assist in suicide. “It was totally illegal in all the other 49 states,” he says. “Only one state said it was legal to prescribe drugs to kill people. And the Supreme Court said that the states get to decide what is and is not accepted medical practice, and the federal government cannot interfere. And I said that’s got to be the same for the medical marijuana laws.”
In May 2008, Olsen filed a petition with the Iowa Board of Pharmacy demanding that it remove marijuana from Schedule I classification (Iowa law states that if a Schedule I drug is improperly classified, the board “shall recommend that the general assembly place the substance in a different schedule or remove it from the list of controlled substances, as appropriate.”) The board rejected the petition in October on the grounds that Olsen had presented no evidence regarding marijuana’s potential for abuse. In response, the American Civil Liberties Union of Iowa intervened that same month, paying the legal fees for a petition of judicial review filed by McMahon, fellow Compassionate IND patient and Iowan Barbara Douglass, and Bryan Scott, a man with AIDS whom Olsen surmises has since moved to California to smoke legally.
This April, an Iowa district court ruled that the board’s rejection was “based upon an erroneous interpretation of law,” because marijuana’s Schedule I status is contingent upon having both high abuse potential and no recognized medical use, not just the former. The court said that the board should have explained why it found that there was insufficient evidence presented regarding the latter qualification, and it ordered it to take another look. So in June, the board again rejected Olsen’s petition on the grounds that other states’ medical marijuana programs did not qualify as accepted use and again pointed to a lack of scientific evidence – an argument that Olsen says is “just garbage,” because, he says, his argument is solely a legal one. But in July, the board proposed holding a series of four public forums to address the science behind pot, and at 10 a.m. on August 19 inside the Des Moines State Historical Building’s auditorium, the first meeting convened.
In Iowa, marijuana has been dual-scheduled for the past 30 years, a contradiction which has given rise to arguments years before Olsen’s that medical marijuana is already legal. In October 1979, the Iowa Legislature granted the Board of Pharmacy $247,000 under the condition that it establish administrative code for a therapeutic research program that was to investigate the medicinal value of marijuana. The program never became operational, but it did have the effect of classifying the drug as a medically usable Schedule II substance – without removing it from its Schedule I status. In 1987, after the board rescinded its rules regarding the program, which had been officially inactive since June 1981, the Legislature amended the Controlled Substances Act so that marijuana would remain both a Schedule I and, “when used for medicinal purposes pursuant to rules of the board,” a Schedule II drug. Still, in the 12 and a half years since the revision, the board has never established any such rules. Because of this, board Executive Officer Terry Witkowski says, “There is no way to use it for medical use legally in Iowa at the present time.”
There was once an exception to this. In 1997, a Waterloo man suffering from fibromyalgia syndrome and back injuries named Allen Helmers successfully dodged a probation violation by arguing that he was using marijuana rightfully under its Schedule II classification. Helmers’s afflictions left him with chronic pain that other drugs failed to alleviate, so he took up smoking. When police mistakenly entered his home in 1995 looking for methamphetamine that they had traced to the man living in the other half of the duplex, they instead found three ounces of pot and booked Helmers. In lieu of serving jail time, he was placed on supervised probation. Later that year, he was charged with violating his probation after testing positive for the drug on two occasions.
The state contended that because the board had adopted no rules for the medical use of marijuana, Helmers should be subject solely to its Schedule I classification. The district court judge for the case, Jon Fister, rejected the state’s argument. “The first flaw in this argument,” he wrote, “is that it depends on the novel proposition that a state agency . . . can do an end run around the general assembly and the governor and amend the Code of Iowa by its own action or inaction.” Because the lack of any rules was due to the board’s inaction, he wrote, “If there are no marijuana specific rules, it may be assumed that the board sees no need to regulate the medicinal use of marijuana any more than any other Schedule II controlled substance.”
But in 2005, a Floyd County man with AIDS named Lloyd Bonjour was unsuccessful in using a common law necessity defense to justify his use of marijuana to better tolerate the side effects of the cocktail of drugs he took to help keep himself alive. The Iowa Supreme Court, with two dissenters among its seven members, ruled that individuals arrested for self-medicating with marijuana have no legal defense precisely because of the board’s lack of rules regarding the conditional medical scheduling. Long story short, because the state has not removed pot from its Schedule I status, nor does it have a law on its books expressly delineating the details of a medical marijuana program, and because the board has written nothing of similar effect, Iowa is not presently among the 13 states that have legal medical marijuana. Pot possession is still a criminal offense under state and federal law for everyone but Douglass and McMahon.
Unless Olsen’s ongoing legal battle with the Board of Pharmacy causes the court to intervene and discontinue the hearings, as he hopes it will, they will go on as planned. The fourth and final one is to take place on November 4 at Harrah’s Casino & Hotel in Council Bluffs. After that, the board plans to meet and decide upon a recommendation for marijuana scheduling by the end of December to present to the Legislature in January, at the beginning of the new session. At the end of the August 19 hearing, I ask Lloyd Jessen, the board’s executive director, for his opinion on Olsen’s legal argument. More or less, Jessen tells me what the board told Olsen when they rejected his petition: “We think there is an issue to decide. It’s just we didn’t feel he gave us what we needed to really make a ruling on it.”
Earlier that day, there was no shortage of anecdotal testimony from individuals suffering from a wide variety of afflictions, among them AIDS, arthritis, bipolar disorder, cerebral palsy, chronic pain, high blood pressure, multiple sclerosis, nausea, and psychological trauma. Some had used marijuana legally outside of Iowa, but more spoke of the hardships involved with self-medicating illegally in the state.
The testimony hit its emotional peak in the afternoon, when Ames resident Amanda Feeley took to the podium with her 10-year-old daughter Morgen. She told the board about how her family struggled to raise four young children when her husband Kevin was diagnosed with spinal lymphoma in 2007. Kevin had lost more than 100 pounds during treatment, and although he beat his cancer last year, he still had the perplexing appearance of a youthful 35-year-old hunched over in an elderly man’s body when he spoke to the board, cane in hand, prior to his wife. He had started smoking pot for a time while fighting the cancer to regain his appetite and alleviate back pain but stopped out of fear that he might be prosecuted. When he did quit, his condition worsened, and one day, when Amanda found him curled up in agony on the floor, she had a friend find her more pot. “I took matters into my own hands and did what I had to do, because I needed my husband back and my children needed a father,” she said, while I watched two men seated near me in the auditorium sobbing profusely, their bodies shaking. Before she returned to her seat, she told the board, “You are in effect making people criminals.”
Only two people spoke in opposition to medical marijuana at the hearing. One was Gary Young, a former Polk County environmental health specialist, who spoke on behalf of the Iowa Elks Association, a fraternity that has a large youth drug awareness program. “I urge the board to make its decision based on scientific evidence and not anecdotal evidence,” he said, near the end of his speech. It’s a valid point. As compelling as patients’ testimonies may be to some, they cannot stand on their own without the support of medical studies. Before Young had his say at the mic, though, four medical professionals and a student pursuing a PhD in medical geography, two of whom phoned in from the University of Washington, had already presented a slew of researched evidence of marijuana’s medicinal potential. One was retired West Des Moines doctor Edward Hertko, a diabetes expert who 30 years ago advised the state Legislature as it acted to recognize medical value in pot. “I won’t be around for another 30 years,” I overheard him tell someone in a determined tone later that day. “I’ll be dead and buried.”
Another physician, Harvard-educated Vermont neurologist Joe McSherry, cited a number of studies in his defense of medical marijuana, among them a 1999 report by the Institute of Medicine that was commissioned by the Office of National Drug Control Policy and titled “Marijuana and Medicine: Assessing the Science Base.” The report found that more research needed to be done before any definitive conclusions could be made, but declared, “Scientific data indicate the potential therapeutic value of cannabinoid drugs . . . for pain relief, control of nausea and vomiting, and appetite stimulation.” It also noted, “Except for the harms associated with smoking, the adverse effects of marijuana use are within the range tolerated for other medications.” Because of this risk, the report advised against the long-term medical use of the drug, but it is a concern easily overcome through the use of a vaporizer or by oral ingestion; and while pot smoking has been linked to some respiratory ailments including bronchitis, a number of studies suggest that marijuana’s primary psychoactive component, delta-9-tetrahydrocannabinol (THC), may actually impede the growth of lung cancer cells.
Although the federal government still maintains that marijuana has no medical value and uses the 1999 report’s reservations as evidence, nearly every government-commissioned study into the therapeutic use of marijuana has found that the drug has medical effectiveness. In 1988, DEA Administrative Law Judge Francis Young, in a ruling famous to advocates of drug law reform, affirmed that a Schedule II classification was lawful, writing, “Marijuana, in its natural form, is one of the safest therapeutically active substances known.” (His judgment was overturned on appeal from the DEA itself.) Marijuana was in the U.S. Pharmacopeia, which establishes standards for medicines, from 1870 until 1941, at which point it was a criminalized drug under the Marihuana Tax Act of 1937. Today, the federal government owns a patent for cannabinoids – upwards of 60 of which can be found in marijuana, many with significant medical potential – which acknowledges their antioxidant and neuroprotectant characteristics.
When I finally introduce myself to George McMahon at the Historical Building, he tells me that he’s had a bad day. “My wife fell and got hurt,” he says. “I’m going to have to drive, when normally I would be leaving the building every so often and smoking.” He is allotted a quarter ounce of pot in the form of 10 marijuana cigarettes each day, which he says he can smoke outdoors like ordinary cigarettes without ever raising any eyebrows – they aren’t particularly potent, although they still smell of weed if you’re close enough. He tells me that he never smokes his full dose, but it’s mid-afternoon now and he’s only had two all day. Despite this, every time that I see him, he is beaming. He jokes playfully with his wife, who is in a wheelchair, and even though he is tired and has to stop to sit and rest frequently, he exudes energy. (Later, I do overhear him asking a friend for a ride.)
The day has been a big success for McMahon. He is largely responsible for the strong turnout, which he believes has sent an important message to the Board of Pharmacy. Each time a supporter of medical marijuana finishes a speech, the room bursts into applause, and Jessen has to ask everyone to please keep the clapping to these moments alone so that the forum can move along at an orderly pace. When McMahon has his turn at the podium late in the day, I am left with the sense that for many in the room, he is larger than life. His speech is brief, so that the stage can be cleared for others. He tells his supporters, “What they need is what we’ve given them.”
The board has scheduled its next hearing for September 2 at Mason City’s Music Man Square Reunion Hall, because the town’s hospital – the board’s original choice of location – rejected a request to host the forum. “Which was a surprise to me,” Jessen says. “I think it’s just a scientific discussion that we’re having. There’s a lot of stigma attached to it yet, though. If you bring up marijuana, there’s a lot of people that pull back from that, aren’t comfortable even talking about it.”
One state representative, Clel Baudler, a Republican from Greenfield in Iowa’s conservative 5th Congressional District, has made a point of doing just the opposite. Before retirement, he spent 32 and a half years as a state trooper, so I give him a call, curious to hear his point of view. “This step is just a step, a nose of the camel under the tent, to get total legalization of marijuana,” he tells me. “If they want THC, which is a drug, Marinol has the same benefits as medical marijuana.” Then, echoing a common drug war line, he adds, “And I just almost refuse to call it medical marijuana. No scientific facts have anything to do with medical.”
I also call Barbara Douglass a few days before the hearing in Des Moines. (She was not in attendance there, because she lives nearly three hours to the north in Lakeside, and because her multiple sclerosis has left her legally blind with crippled legs.) I ask her about Marinol, and, like nearly everyone who mentions the prescription drug at the hearing – both patients and doctors – she does not have kind words. “Is Marinol in my fridge?” she asks, rhetorically. “Yes, it is. Did Marinol cost $400 a month? Yes, it did.” Douglass, like McMahon, receives her marijuana cigarettes free of charge from the federal government, but she went through a two-year dry spell when her shipments were disrupted. “It helps a bit, but no, not enough. I quit. I was taking it for about a year of that two years without and, ay, man-made, no way.” Alan Koslow, a West Des Moines vascular surgeon who spoke at the hearing, tells me, “I have not had a patient who has been satisfied with the results when you compare it with smoking marijuana. I’ve had such poor results with it I don’t even bother with it.”
The problem with Marinol is probably that it is nothing more than a synthetic recreation of THC, which is just one of many therapeutically valuable substances in the cannabis plant. It lacks any of the non-psychoactive government-patented cannabinoids present in marijuana, including CBD, or cannabidiol. CBD not only has demonstrated medicinal use in the treatment of arthritis, epilepsy, and neurotoxicity, but a recent study by the Institute of Psychiatry in King’s College London suggests that it may be responsible for counteracting the adverse effects of THC’s psychoactivity that may trigger psychotic episodes in some users. Marijuana also contains oils and phenols absent in Marinol that possess therapeutic potential.
“I think as a reporter you should look at what’s going on in Venice Beach, California,” Baudler tells me later in our conversation, with indignation in his voice. “Eighteen-year-old kids get a prescription out there, and they can smoke marijuana in restrooms and on beaches at Venice Beach. Now, this is a society that I don’t want to live in. I don’t want any part of those people.”
Technically, it’s not a prescription that is required in California but a signed doctor’s recommendation, because marijuana is not FDA-approved. But Baudler’s description of the beach is accurate. I spent an afternoon there this summer, and I couldn’t walk along the boardwalk without seeing head shops, pot dispensaries, and people puffing on joints every several feet. Buyers and sellers alike here have exploited the lack of regulation to create an environment that is not too far removed from de facto legalization, especially since Obama’s Justice Department pledged to put an end to the DEA raids on the dispensaries. Police cruisers comb the beach, but they drive past smokers without incident.
At one point, I was handed an advertisement for one of the dispensaries. When I stopped to look it over, the man who handed it to me did everything but grab me and drag me inside to try talking me into signing up for a license, even after I told him that I was on vacation from Iowa. I relate the story to McMahon, and I find out that it’s something he’s well aware of. “You didn’t have any time or reason to be there,” he says. “He pulled everything out. And then you go in and give 300 bucks and see a doctor. That’s a criminal enterprise; doctors can be criminals, too. He’s selling you a license. He’s a criminal.” I then tell him about my friend who lives north of Los Angeles, who got a doctor’s recommendation for depression and anxiety, to see if he thinks that it’s an adequate reason to use marijuana. “Okay, yeah, good,” he replies. “Stress relief.”
Sunil Aggarwal, the graduate student who phones in from Washington at the hearing, is also familiar with the Venice Beach example. He recommends that the board look to the medical marijuana programs of New Mexico and Rhode Island, which have stricter regulation at the state level than does California, as models for Iowa. As Douglass points out when I ask her whether she is hopeful that medical marijuana will be legalized in Iowa, “We are not California.” State Senator Joe Bolkcom, a Democrat from Iowa City, introduced a bill to legalize it in March, but he promptly withdrew the legislation because, a Republican colleague told the Le Mars Daily Sentinel, its restrictions were too vague. It is unlikely that a Venice Beach scenario would arise in Iowa were medical marijuana to be legalized.
Dr. Koslow tells me that marijuana has a better safety profile and lower addiction potential than the combination of narcotics and antidepressants that his patients regularly take to fight their neuropathic pain. He claims that his peers agree with him even though politics cause many to shy away from speaking openly about their beliefs – no doubt a controversial statement. “I’ve spoken to a lot of physicians, and my perception is that when they’re looking at it purely from a medical point of view, they’re almost uniformly in favor of legalizing it. And that has been a significant change from the last 15 or 20 years.” Dr. McSherry, the Vermont neurologist, is more conservative is his estimate, but he believes that, like the general population, a majority of doctors favor legalization for medicinal purposes. “A lot of them don’t want to talk about it,” he says, echoing Koslow. “But if it was a closed ballot, they’d vote for it because they think it makes sense.”
It would appear that the scientific evidence the Board of Pharmacy didn’t receive from Carl Olsen was made available in plentiful supply by others at the board’s first hearing in Des Moines. Statehouse leaders have indicated that they don’t believe enough votes would exist to pass a medical marijuana bill now, but that a board recommendation could be persuasive. McMahon is optimistic. “I think that this is a way of working it so that they have the backing they need,” he hypothesizes. Olsen is still distrusting, and he says that he isn’t going to take any chances. “My impression is that they have seriously violated my due process rights and everyone else’s due process rights. They should have done this 13 years ago. They’re required by law to review these schedules annually,” he tells me, two days after the first forum. “Now, they’re having these hearings and then asking people who are breaking the law to come and expose themselves in front of the world and make themselves subject to arrest. It’s a farce.”
The next day, while I am putting the finishing touches on this story, I notice that I have a voicemail. It’s from Olsen. He’s just received a letter from a district court judge in the mail. Before the forum, a second ACLU-supported judicial review petition had been filed in response to the board’s second rejection of the rescheduling request in June. Olsen’s new mail, dated August 19, orders that the motion for review come on for hearing at the Polk County Courthouse in Des Moines on September 21. “I would say that’s pretty quick,” his voicemail says. “I would say the judge is pretty concerned about what’s going on – the board is ignoring my petition and going ahead and holding these hearings, and I don’t think the court is appreciating the fact that they’ve just ignored the court’s order.” But, he concedes, “That’s just my opinion. I mean, I have no idea. But that’s a pretty quick response.”