Editorial:
Epic
and
Turbulent
Times
11/26/04
These are turbulent times in issues related to the drug war. In one frightening criminal trial, Dr. William Hurwitz, a Virginia physician who has helped numerous chronic pain patients whom other doctors wouldn't, is facing drug charges -- charges many observers consider unreasonable if not trumped up. And in an epic case coming to the US Supreme Court Monday morning, patients who use medical marijuana are arguing that the federal government overstepped its authority when it interfered with their lives. Dr. Hurwitz is a long time hero to the pain patient movement. In 1996 he was exonerated by the Virginia Board of Medicine after an ugly investigation that drew calumny upon the board and drove at least one of Hurwitz's former patients to suicide for lack of treatment. Not satisfied, federal prosecutors targeted him again. During the multi-week trial, which is ongoing at the Alexandria, Virginia, federal courthouse, DAs have trotted out addicted drug convicts who went to Dr. Hurwitz for prescriptions. These former Hurwitz patients -- who presumably are being compensated with leniency in exchange for their testimony -- claim to have sold some of the opiate drugs Dr. Hurwitz prescribed to them. Prosecutor Paul McNulty is arguing that Hurwitz must have known they weren't being honest with him about their pain levels, and that by prescribing them what they wanted he crossed the line "from healer to dealer." If he convinces the jury of this, Dr. Hurwitz could go to prison for life. Frank Fisher, another doctor who faced down the authorities over pain control at great personal cost, describes Dr. Hurwitz as the "most ethical" doctor in the pain movement. Hurwitz treats the patients other doctors are most scared to treat -- pain patients whose backgrounds or histories, including addition difficulties, might make them more of a risk of abuse or drawing prosecution. Hurwitz treats them, according to Fisher, because medical ethics, humanitarianism itself, requires they be treated. Fisher told me, following a recent Congressional briefing on this subject organized by the Association of American Physicians and Surgeons, that the question lying at the heart of the Hurwitz case is whether there is a class of people who are not allowed to receive appropriate treatment for chronic pain. Angel Raich and Diane Monson, medical marijuana patients, and their two anonymous caregiver/growers, brought suit against John Ashcroft after the Dept. of Justice initiated raids three weeks after 9/11/01 against medical marijuana cooperatives across the state of California. The heart of their case is a challenge to the government's interpretation of the Interstate Commerce Clause in the US Constitution. Raich and Monson charge that provision of marijuana, to patients who need it as a matter of medical necessity, by private growers intra-state (within the state's borders), is not interstate commerce (across state lines). The government contends that any activity involving marijuana can be regulated by Congress, because in theory the marijuana could cross state lines and be sold elsewhere -- even if it's not. The case is considered one of the most important on the court's docket. As Dr. Hurwitz's trial was looming, the DEA and a number of medical organizations and experts released a "consensus statement" on pain control. Then, a few weeks later, DEA suddenly retracted the statement, saying it contained errors but not explaining what they were. Pain advocates charged it was because the document was cited by Dr. Hurwitz's lawyers in his defense, and DEA didn't want anything out there that might help him. A short statement published this month seemed to indicate that DEA's motives included a desire to preserve unfettered the government's ability to investigate and prosecute any doctor at anytime. Drug War Chronicle tried to write an article for this issue about this latest DEA communique, but neither the DEA nor any of the several medical bodies involved in the consensus statement whom we contacted returned our phone calls. There seems to be a lot of embarrassment about this. To which I say, there should be, at least on the DEA's part. With Raich v. Ashcroft looming, the plaintiff's side gained some unexpected allies in the form of the attorneys general of three southern states. They are not pro-medical marijuana -- one of them told Time magazine he considers the state medical marijuana laws to be "misguided" -- but for them it is about states' rights. We'll see what happens. Regardless of the outcomes, patients should not have to resort to the courts to claim their natural rights against the government; and doctors practicing honest, compassionate medicine should not have to be dragged through the courts to prove that they shouldn't spend their lives in prison for doing it. On both counts, this court of public opinion finds the federal government guilty.
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