by: Jonathan Bair, ASA
(republished from: ASA's Blog)
This morning, the federal Appeals Court for the DC Circuit heard an appeal in the case called
Americans for Safe Access v Drug Enforcement Administration.
The case is an appeal of the DEA’s rejection of a petition filed in
2002 seeking to change the placement of marijuana as a Schedule I drug
per the Controlled Substances Act. Based on the scientific evidence, ASA
and our fellow plaintiffs feel that it is simply untrue that cannabis
is a drug with a “high potential for abuse” and “without accepted
medical use in treatment in the United States.” The hearing today
offered a glimpse at the Court’s approach to this topic.
In front of a packed courtroom in Washington, the three-judge panel
questioned ASA’s Chief Counsel Joe Elford and a federal lawyer about the
merits of the scientific case, and the crucial legal issue of
“standing.” Standing is a legal concept that restricts the right to sue
to injured parties – people who are directly hurt by what they are
fighting, and can get relief from a legal judgement. The issue of
standing has been the reason why two prior appeals of the DEA’s
classification of marijuana were rejected. In the past, patients have
not been part of lawsuits against the Controlled Substances Act. The
three judges were Merrick Garland, Karen Henderson, and Harry Edwards.
ASA’s Chief Counsel Joe Elford opened his appeal by arguing that the
federal “Department of Health and Human Services plays a game of gotcha”
by tightly controlling research access to cannabis and then claiming
that there is not enough compelling research to justify reconsidering it
as Schedule I. The Drug Enforcement Administration erred by determing
that cannabis has a high potential for abuse when its findings determine
its abuse and harm potential is less than other substances in
less-controlled schedules, such as cocaine.
Elford opened his arguments with the issue of standing. He pointed to
the affidavit of plaintiff Michael Krawitz, a veteran denied access to
Veterans Administration services because of his medically necessary use
of marijuana. The Veterans Administrastion’s harmful policy is based on
marijuana’s status as a Schedule I substance. He also spoke of the many
members of Americans for Safe Access, who are fearful of the
consequences of cultivating their own cannabis for their medical needs,
and that a medical necessity defense in court could be allowed if
marijuana were not in Schedule I.
Elford then turned to the issue of the merits of the DEA’s position
on marijuana’s medical value, to prove their position was “arbitrary and
capricious” and therefore impermissible. The contention that there is
not a complete consensus was argued to be an unreasonable interpretation
of the regulatory standard, and that many of HHS’s standards are
inapplicable to an organic substance. Significantly, the lack of access
to marijuana for medical research is a consequence of the scheduling,
yet the lack of suitable research is cited by the DEA as a reason for
maintaining the schedule. Despite this lack of research access, ASA
cited a growing body of high-quality scientific and medical research
into the benefits of marijuana.
Judge Garland asked Elford if he was arguing that marijuana in fact
meets HHS’s standard for studies. ASA’s counsel cited over 200 studies
and argued that a circular standard is impossible to meet. He also said
that, given that the schedule is relative, the DEA is ignoring even its
own studies showing that marijuana has merely a “mild” potential for
abuse.
Joe Elford concluded by arguing that Schedule I was an inappropriate
classification of marijuana and it caused harm to patients and prevented
meaningful medical research. Rescheduling marijuana would allow for a
reasonable policy solution for suffering patients and uphold the intent
of the Controlled Substances Act.
Judge Edwards asked about the standing of Mr. Krawitz, and his access
to medical marijuana. The judges asked about access in medical states
and noted that marijuana would not be legal just because it were
rescheduled.
Federal counsel Lena Watkins then presented her position against
appealing the DEA’s decision to continue cannabis in Schedule I. She
noted that state legislatures or popular votes do not determine accepted
medical use. She said that research is inadequate and has not
progressed, and argued that the government does provide access for
research. Turning to the abuse potential, Watkins said, “marijuana is
the most widely abused drug in America,” and dependency is a factor in
making that assessment.
The judges questioned the level of access provided for research, and
Watkins said that fifteen studies of a specific federal “quality” metric
have been allowed. Pressed to explain why these studies haven’t
persuaded the DEA that marijuana has medical benefits, she said, “we
don’t have the final results yet.” To many in the audience, the circular
nature of the government’s position on the science of marijuana was
clear. The judges then invited Elford to give a rebuttal.
Focusing on rebutting the government’s claims about research, Elford
argued that there has been adequate study and even more since this case
was filed in 2002, and noted that he would like to admit additional
evidence to the case. Summarizing by turning the government’s “no
substantial evidence” argument on its head, Elford said that both sides
agree more research needs to be done and that research can only happen
if marijuana is released from Schedule I. Requiring the DEA to make
scientific determinations on a new schedule would lead to better policy
and more relief for suffering patients.
The patients spoke out at a well-attended press conference after the
hearing, and Americans for Safe Access is proud to have given patients a
day in court. Many observers felt the judges were willing to
consider the argument of Michael Krawitz’s direct harm from the
Controlled Substances Act, and this issue of “standing” has been the
Achilles heel of past lawsuits against Schedule I. However, Judge
Garland asked at one point, “Don’t we have to defer to the agency? We’re
not scientists. They are.”
We’ll find out whether the judges felt the DEA’s science is adequate,
or if patients can sue for a medical necessity defense against harsh
marijuana laws, when the judges rule. We don’t expect it for a few
months.
This opportunity is thanks to
the brave plaintiffs who took on the federal government on behalf of many others.
Jonathan Bair is ASA’s Social Media Director. Recordings of any kind were not allowed in the courtroom.
Posts
