Medical Marijuana’s Uncertain Path Forward

March 13th, 2010 · No Comments

On the afternoon of February 17, the Iowa Board of Pharmacy voted unanimously to recommend that the state Legislature revise its cannabis laws to allow for the plant’s medical use. The board’s decision was the expected end result of four public forums held across the state last fall, which convened following a lawsuit spearheaded by Des Moines activist Carl Olsen demanding that marijuana be removed from its Schedule I legal classification. The classification identifies the drug as having “high potential for abuse” and either having “no accepted medical use in treatment in the United States” or lacking “accepted safety for use in treatment under medical supervision” – all of which are arguably untrue. The 6-0 vote of the board came in the wake of (but was probably not influenced by) a Des Moines Register poll showing that 64 percent of Iowans approve of marijuana’s medicinal use.

But the truth is that medical marijuana has a number of hurdles to clear before it can become legally available in the state. There are just a few short weeks left in the 2010 legislative session and lawmakers have indicated that the issue is not a priority. Instead, they plan on forming an interim study commission this summer in order to prepare debate for the 2011 session next January. Democratic Governor Chet Culver opposes medical marijuana, and a veto would require a two-thirds majority of both houses of the state Legislature to overcome. Although Culver’s stubbornness may prove irrelevant in light of his poor approval ratings – polls show him on his way to a sound defeat this fall at the hands of former four-term Governor Terry Branstad, the GOP’s probable challenger – it’s likely his successor would be just as unwilling to support the issue.

“There’s no teeth in law the way it’s done now,” says George McMahon, one of only two Iowans and four Americans who are provided free, legal pot from the federal government after having been grandfathered into the National Institute on Drug Abuse’s Compassionate Investigational New Drug program, which was ended in 1992. “I’m a little disappointed because we’ve done this two or three times now and then nothing happened.” In 1979, the Legislature allotted the Board of Pharmacy $247,000 to set up a program that would research the drug’s medical value. That program never became operational, but it had the effect of reclassifying medical marijuana as a legal Schedule II substance “pursuant to rules of the board.” But because of changes in federal law, the rules were lost. “There’s always been a section in Iowa Code that classifies marijuana as Schedule II if the board has administrative rules for medicinal use of it,” explains Board Executive Director Lloyd Jessen. “It’s just that ever since 1981 we haven’t had any rules.”

Even if the board were to have established a new set of rules by itself instead of deferring to the Legislature, those rules wouldn’t have had any force of law without approval from the Legislature’s Administrative Rules Review Committee. “The board really is not interested in doing it that way because it’s such a political issue,” Jessen says. “We feel it’s really something that the Legislature and the governor need to act on.” Despite all the obstacles that remain, Olsen is cautiously optimistic about the board’s recommendation. “There’s no other way this could happen,” he says. “You’re talking about [3 million] people in the state of Iowa. They all have to be brought up to speed and understand why we’re doing this to accept it.”

Both Olsen and McMahon – who was also part of the original lawsuit filed with the help of the American Civil Liberties Union of Iowa – plan to keep their legal battle alive. “I’m glad they made the recommendation, but they didn’t answer the question that we asked them to by law,” McMahon says. The question he refers to is whether marijuana’s Schedule I classification is unlawful because it has legally accepted medical value in 14 states now. “The legislature wrote this law saying ‘accepted medical use in the United States,’” Olsen says. He believes that this language should be applied to state laws as well as federal law. If a court rules the Schedule I status unlawful, Olsen hopes, medical marijuana could avoid some of the legislative roadblocks it appears to be headed toward now.

In light of the board’s recommendation, ACLU of Iowa Legal Director Randall Wilson says his organization plans to drop out of the legal fight. “The legal arguments that we made were just one way to force the agency to do what we wanted the agency to do,” he explains. “The agency took a different route. The agency looked at the drug itself. It came up with a finding that, even considering the risk factors, marijuana needed to be moved to Schedule II. In a way,” he adds, “that’s even better than what we were asking for. We were asking for the court to apply a technical provision of the law to force the board’s hand. Instead, the board took this drug on the merits and got to the same place.” Still, Wilson makes it clear that the ACLU remains “committed to marijuana law reform.”

Other questions, such as the one Olsen raises as to why the board didn’t recommend that the Legislature reclassify marijuana more accurately as a Schedule III substance (drugs with a “moderate or low physical dependence” and a potential for abuse less than that of drugs including methamphetamine and cocaine) will not likely be answered any time soon. For medical marijuana advocates, this could be for the best, because it would probably embolden pot foes such as Republican State Representative Clel Baudler, who told the Ames Progressive last August that “this step is just a step, a nose of the camel under the tent, to get total legalization of marijuana.”

The real test may well come in 2011 during the new legislative session, when more legislators make their views on the issue public. The initial reaction has been largely positive, even among some Republicans. House Minority Leader Kraig Paulsen, for instance, told The Des Moines Register that he does not object to the idea of an interim committee this summer. The board’s recommendation, he said, “leads me to take this with a level of seriousness.” House Majority Leader Kevin McCarthy told the Register that the recommendation was “a game-changer.”

Most reluctance to the notion of medical marijuana in Iowa comes from reports of the over-permissive programs of some other states, most notably California’s. “Without adequate controls, we would have mayhem,” the board’s Vice Chairwoman Susan Frey said before the February vote, according to the Register. But it is nearly inconceivable that Iowa would have a system as open as California’s: a bill Iowa City Democrat Joe Bolkcom introduced in the state Senate last year quickly died because its restrictions on access to pot were considered to be too vague.

“It’s just simply wrong” to keep marijuana away from patients who need it, McMahon says. He has recently had a fresh set of health complications related to his rare genetic disorder, and it is obvious from the sound of his voice that he’s very tired. “But I don’t think I’m going to die today,” he says. Regardless, he believes that things have turned out well for him. “I’m 20 years older than I ever would have been had it not been for marijuana.”

Tags: 2010 · AP Issues · Gavin Aronsen · March 2010 · Medical Marijuana · News

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