Source: Statesman Journal (OR)
Author: Peter Wong, Statesman Journal
Published: May 30, 2004
Copyright: 2004 Statesman Journal
Contact: [email protected]
The decision by a federal appeals court on Oregon’s assisted-suicide law last week could have implications for other medical-practice issues, particularly medicinal use of marijuana.
In 2002, the 9th Circuit Court of Appeals ruled against the federal government and for doctors in California, who were threatened with punishment and potential loss of their licenses to prescribe medication if they recommended medical marijuana to their patients.
The court ruled that doctors had a right under the First Amendment to the Constitution to discuss the issue with patients.
Oregon and California are among the 10 states — mostly in the West — with medical-marijuana laws. Vermont’s Legislature cleared its bill last week, and the governor will let it become law without his signature.
The others are Alaska, Arizona, Colorado, Hawaii, Maine, Nevada and Washington. Maryland allows a legal defense of health reasons for patients who use marijuana, lessening penalties for its possession.
The laws are at odds with the federal government.
Kevin Neely, Oregon Justice Department spokesman, said the federal government classifies marijuana in one category of controlled substances — and the drugs that doctors may prescribe for terminally ill patients in another category.
“The advocates for medical marijuana may take a closer look at this week’s decision,” Neely said. “But our position is that we’re talking about apples and oranges here.”
Under a 1970 federal law, which the U.S. Supreme Court upheld in 2001, people cannot possess or use marijuana even if they invoke “medical necessity.”
But the 9th Circuit ruled in December that the Controlled Substances Act does not apply to patients who have obtained doctors’ approval to use the drug in states with medical-marijuana laws. The 2-1 decision held that federal officials cannot prosecute them if marijuana is used for medical purposes under state laws, is grown locally, dispensed non-commercially, and does not cross state lines.
The U.S. Justice Department is likely to appeal that decision to the Supreme Court.
The U.S. Drug Enforcement Administration has cracked down on distribution networks in California. But a federal judge ruled last month that based on the 9th Circuit decision in December, federal agencies cannot punish a distribution organization that DEA raided in Santa Cruz, Calif.
Unlike California, Oregon does not permit sale of marijuana for medicinal purposes under a ballot measure that voters approved in 1998.
Oregon law does allow a registered patient or a designated primary caregiver to possess one ounce of usable marijuana, plus three mature marijuana plants and four immature plants, at a specified location.
The process involves paying a fee and obtaining a card from state health officials, and notifying law enforcement officials.
Supporters have argued for a less cumbersome system to get marijuana to patients, but critics say their aim is de facto legalization of the drug.
Shawn Flury of Salem is part of the newly formed Oregon Green Cross organization. He was angered last week when Clackamas County sheriff’s deputies uprooted 120 plants at a site near Marion County, even though Green Cross said it had proper paperwork for at least 27 patients. Charges are pending.
“We have been trying to get free medical marijuana to as many patients as possible — and we give it away,” Flury said. “There is no precedent for a medical-marijuana garden being ripped out of the ground like this. Now we have patients around the state who are suffering.”
A new initiative that advocates hope to qualify for the Nov. 2 ballot would set up a system of dispensaries. It also would raise the current limits on possession to one pound and 10 plants.
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