Legal Risks of Treating the Pain Patient (Part 2)

FEBRUARY 03, 2010
Bradley Schmidt
Making Sure Your First Dance with Mary Jane Isn’t Your Last

In two separate rulings, the Supreme Court effectively killed the medical marijuana movement by ruling: 1) that physicians have no right to prescribe a schedule 1 substance, irrespective of the laws of any state; and 2) that if marijuana were to be legalized, it would have to be done through the FDA approval process like any other drug marketed in the United States.

However, the movement was given new life when the Supreme Court ruled in favor of the legality of physician-assisted suicide in Gonzales v. Oregon. The heart of the matter was not a patient’s right to die, but whether states or the federal government set the standards of medical care.

The rulings have more recently grown in prominence because the Obama administration has taken a decidedly more tolerant stance toward the use of medical marijuana than that of the Bush administration, giving to the states more power and leeway under federal law. Thus far 14 states have medical marijuana legislation in place.

Despite this, the use of marijuana is still illegal under federal law and the FDA’s official position remains that marijuana has no medicinal value. Long-term it is difficult to say what stance future administrations will take on the subject. Short-term, though the Obama administration seems to have deferred to the states on the issue, it remains unclear up to what point the federal government under President Obama will tolerate the distribution of medical marijuana. Certainly they won’t let doctors use their powers to become de facto drug dealers, but where is the line in the sand? Even this more relaxed reality perpetuates physicians’ existence in legal limbo.

The best advice is probably: “You can’t lose if you don’t play.”

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