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Marijuana Use
To Alleviate
Illness Is a
Guaranteed
Legal Right
By Sharon B. Morris
he U.S. Constitution guarantees personal freedoms. The California Supreme Court case
of Thor v. Superior Court, 5 Cal.4th 725 (1993), delineates one of these freedoms as
the right to choose one’s own course in health.
Thor asks whether or not a person has the right to demand the withdrawal of his or her medical treatment. After discussing absolute self-determination in medical-care decision-making, personal autonomy and the right to determine what type of body one is willing to live in, the court held that California law ensures self-determination, a concept that includes a person’s right to refuse or demand medical treatment. (Thor, at pp. 732, 738). Only the patient’s choice as to medical treatment is relevant; other choices must be silenced if self determination is to mean anything at all.
The People of the State of California, in passing Proposition 215, have the strength and reason of Thor to back up their emotions. Voters have decided that if they are sick and in need of an alleviating, medicinal puff of marijuana, that they are entitled to smoke.
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Puffing Your
Medicine
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Skeptics should find solace in the fact that people cannot smoke just to smoke. A person can smoke only if he suffers from an illness and if he has a doctor’s recommendation that he smoke marijuana as medicine to alleviate his illness.
Skeptics should also look to Keith Vines. Vines is an assistant district attorney in San Francisco, a powerful force in the war on drugs and a pot user. An AIDS patient who suffers from wasting syndrome, Vines absolutely requires marijuana so that his body weight can support his life and his rigorous career. See Geoffrey Cowley, “Can Marijuana Be Medicine?” Newsweek Feb. 3, 1997, at p. 24. A prosecutor who uses marijuana, is this irony of the greatest sort?
 nyone who sees irony misses the point of
Proposition 215. Mr. Vines breathes life to the
belief that medical marijuana is not a criminal drug
issue. Medical marijuana is removed from the war on
drugs because it is a personal, constitutional
medical issue. The irony is not within Mr. Vines, it
is within the federal government, which doesn’t
follow Thor and will not admit that marijuana is
medicine.
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Barry McCaffrey, director of the Office of National Drug
Control Policy, has noted that medical research does not
show marijuana’s medical effectiveness even though his
government has not pressed forward with current studies.
He says this even though he once wrote: “we ought to
find out if it [medicinal marijuana use] is safe and
effective.” Barry McCaffrey, “We’re On a Perilous Path,”
Newsweek, Feb. 3, 1997, at 27.
 f it is
determined that marijuana use is safe and effective,
Proposition 215 should be validated in the eyes of the
federal government. If McCaffrey would follow through
with the opinions expressed in his Newsweek article and
conduct the studies to show that marijuana is medicine,
the federal government would be forced to conclude that
there is a division between criminal marijuana use,
subject to penalties, and permissible marijuana use,
subject only to state regulation. The failure to
recognize this division is the triggering force behind
criticism of Proposition 215.
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A U.S. Justice Department official recently said, “the sense of
frustration here is just huge...the dilemma is that in trying to
look tough [to deter marijuana use], we wind up looking
draconian.” Matt Bai, Patricia King and Daniel Klaidman, “The
War on Weed,” Newsweek, Feb. 3, 1997, at p. 22.
That sense of frustration may be trying to tell the federal
government something: only be tough on what you are supposed to
be tough on – criminal marijuana use. Don’t be tough on
California’s choice that medical marijuana use is legal.
Glaucoma sufferer Rob Dunaway lost his job because he tested
positive for marijuana, even though he only smoked under a
doctor’s recommendation. San Francisco Examiner, Feb. 23, 1997,
at C5. Dunaway’s case will likely be the first Proposition 215
civil case. The second case may involve a criminally prosecuted
doctor, who “dared” to recommend marijuana.
 any
Californians believe that patients have a fundamental right to
medical marijuana. Based on that right, doctors will recommend
marijuana use and lawyers will defend their position by arguing
that Thor authorizes that one of the personal freedoms
guaranteed by the U.S. Constitution is the right to smoke
medical marijuana.
I am one of those lawyers.
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