The medical marijuana defense group Americans for Safe Access (ASA) and a number of individual plaintiffs took their case for the rescheduling of marijuana to the US Court of Appeals in the District of Columbia Tuesday. In oral arguments there, they urged the court to order the Drug Enforcement Agency (DEA) to reverse, or at least reconsider, its rejection of a decade-old petition seeking rescheduling.
Medical marijuana advocates have thrice petitioned the DEA to consider rescheduling marijuana, citing increased knowledge about the medical efficacy of the herb. The first petition languished for more than two decades before the DEA rejected it; the second was finally rejected after seven years, and it took the agency a decade to reject the most recent one. In the intervening period, 17 states and the District of Columbia have moved to allow for the medical use of marijuana.
The DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understand. ASA and the individual plaintiffs appealed the decision in January. (Read the appeal brief here.)
In oral arguments Tuesday, ASA counsel Joe Elford charged that the DEA had ignored accumulating evidence of marijuana's benefits, and so acted "arbitrarily and capriciously" in rejecting the rescheduling petition last year. Federal law requires the agency to take such evidence into account, he said. Elford also accused the Department of Health and Human Services of creating a Catch-22 for medical marijuana advocates by strictly limiting researchers' access to marijuana, then arguing there is insufficient scientific evidence to merit rescheduling it.
"This game of 'gotcha' will continue indefinitely unless this court intervenes," Elford told the three-judge panel.
Despite the federal government's obstructionism, Elford was able to cite over 200 studies of marijuana's medical efficacy. He argued they helped prove that Schedule I is inappropriate for marijuana, and that its continued placement in Schedule I both harms patients and hampers research.
Elford accused the government of "bias" in its refusal to reschedule marijuana. It ignores its medical benefits and hypes its danger, which is the only way "the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine, and opium," he told the court.
But the DEA was prepared to defend its position. Agency attorney Lena Watkins told the court the agency had already considered the evidence and it found the argument that marijuana should be rescheduled unpersuasive.
"They don't have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana," Watkins argued.
Marijuana is scary stuff, she told the court. The plant has "adverse physical and psychological consequences" and has been "implicated in hundreds of thousands of hospital visits," Wilkins said.
Wilkins did not acknowledge any of the logical caveats to those statements. For example, hospital emergency rooms routinely ask about substance use and that even a person who had used marijuana and then been injured by a drunk driver would be coded as a "marijuana-related" emergency room visit. Additionally, actual marijuana-related emergency room visits typically are anxiety attacks or panic reactions, which are easily treated, and not life-threatening events like potentially fatal hard drug or alcohol overdoses.
"Marijuana is the most widely abused drug in America," Wilkins added, noting that abuse potential is one of the criteria for placing a substance on the schedule.
The court and the opposing attorneys also addressed the issue of standing. In rejecting the appeal of the second petition--from 1995--that the DEA refused to reschedule, the court never addressed the core issues of the case, instead throwing it out because petitioner Jon Gettman, a marijuana researcher and former national NORML executive director, could not demonstrate direct harm from the government's actions.
This time around, ASA has plaintiff Michael Krawitz, a disabled Air Force veteran from Virginia who is dependent on the Veterans Administration for his health care and who is prevented from even asking about medical marijuana to treat his pain. Krawitz is being directly harmed by federal policies and thus has standing, Elford argued.
"That seems pretty straightforward," said Judge Harry Edwards.
But the DEA's Watkins demurred, arguing that Krawitz could not legally obtain marijuana anyway because Virginia has not approved its medical use.
At the end of the day, it was unclear whether medical marijuana advocates had won their argument before the panel of veteran judges. The jurists appeared to question whether the courts had the right to second-guess the DEA.
"The real question is to what extent we have to defer to the agency," said Judge Harry Edwards.
"Don't we have to defer to their judgment?" asked Judge Merrick Garland. "We're not scientists. They are."
The pair of judges said they would not overturn the DEA's decision unless they found it to be "arbitrary and capricious." But that, of course, is precisely what Alford and the plaintiffs argued it is.
The appeals court will not hand down its decision for some months.