Medical marijuana legalization likely headed to Supreme Court

By Stephen C. Webster
Tuesday, January 22, 2013 15:23 EDT
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Medical marijuana. Photo: Shutterstock.com, all rights reserved.
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An appeals court refused on Tuesday to even consider reviewing evidence to reclassify marijuana due to its medical usefulness, leaving the nation’s largest medical marijuana advocacy group vowing to ask the Supreme Court for a review.

In their ruling (PDF), three judges on the U.S. Court of Appeals in Washington, D.C. explained that they did not take up the question of medical efficacy because the suit was otherwise disqualified by a technicality. Attorneys for Americans for Safe Access argued that a petition denied by the Drug Enforcement Administration (DEA) in 2011 was denied on “arbitrary and capricious” grounds, which the court took exception to.

That petition, which the DEA sat on for nearly a decade without any action, asked the agency to examine the latest scientific evidence for marijuana’s medical uses and consider changing the drug’s status in the federal register of controlled substances. The DEA considers marijuana to be Schedule I, a classification reserved for drugs like LSD, Peyote and Ecstasy that are considered to have no medical value.

The court noted that the Controlled Substances Act requires a “currently accepted medical use” before the DEA will consider rescheduling any drug. Added, a prior case from 1994 saw the D.C. Court of Appeals approve the DEA’s definition of what is and is not “currently accepted medical use,” stipulating that “adequate and well-controlled studies proving efficacy” must first exist.

“We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist,” the ruling explains.

It’s not true that there are no controlled scientific studies into the efficacy of marijuana — The Raw Story has published articles detailing numerous such research reports — but since the court relied upon the DEA’s interpretation of “adequate and well-controlled,” ASA’s suit was doomed.

“To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise,” ASA lead counsel Joe Elford said in a prepared statement. “It’s time for President Obama to change his harmful policy with regard to medical marijuana and treat this as a public health issue, something entirely within the capability and authority of the executive office.”

Despite the loss, there is still some hope in the lawsuit for drug reform advocates, in that the court ruled against the government’s claim that the plaintiffs lacked legal standing to challenge the DEA’s scheduling of marijuana.

One of the plaintiffs, Michael Krawitz, director of Veterans for Medical Marijuana, “has suffered injury-in-fact because he must shoulder a financial cost for services he could otherwise obtain free of charge” due to his status as a veteran, the court opined.

“There is a casual connections between the DEA’s continuing decision to classify marijuana as a Schedule I drug and the VA’s policy of refusing to provide referrals for state medical marijuana programs,” judges added. “And a favorable decision from this court would likely redress Krawitz’s injury because, if the DEA rescheduled marijuana, the VA could no longer use the [Controlled Substances Act] to justify its policy of refusing to complete medical marijuana referral forms.”

It is on those grounds that ASA likely plans to appeal the ruling to the Supreme Court, in hopes setting up what could be the highest-profile legal showdown over medical marijuana in U.S. history — but only if the court agrees to hear the case. Meanwhile, ASA is asking the D.C. Court of Appeals for all the court’s judges to review the ruling, which was decided by a vote of 2-1.

Photo: Shutterstock.com, all rights reserved.

Stephen C. Webster
Stephen C. Webster
Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.
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