FORT LAUDERDALE, Fla., Sept. 11 (AScribe Newswire) -- What does the Bush administration have against the terminally ill?
First, when Oregon voters overwhelmingly reaffirmed support for allowing physician-assisted suicide, Attorney General John Ashcroft and his lawyers swooped in arguing that those who are dying don't have the right to make this choice. Surprising -- given Washington v. Glucksberg, the 1997 unanimous Supreme Court opinion which concluded that this is an issue the states should decide.
Oregonians decided. But, says the administration -- which is all for states' rights unless states pass laws with which it doesn't agree -- the people of Oregon can't decide. Huh?
Mr. Ashcroft issued a directive declaring assisted suicide is not a "legitimate medical purpose" so "prescribing, dispensing, or administering federally controlled substances" to hasten death violates the Controlled Substance Act (CSA) and may subject the doctor to license "suspension or revocation."
The State of Oregon, patients, and physicians went to court. A federal judge entered a permanent injunction preventing the government from "giving any legal effect" to the directive. Mr. Ashcroft appealed. The Ninth Circuit Court of Appeals is expected to rule this month.
Second, President Bush and Mr. Ashcroft urged the Supreme Court to overturn Conant v. Walters. This case upheld, on First Amendment grounds, a California statute permitting doctors to prescribe or recommend marijuana if patients with certain debilitating or life-threatening diseases would benefit from it.
Here's the administration's explanation. The Controlled Substance Act is a federal statute providing a comprehensive scheme for regulating and controlling certain drugs. Congress's aim in passing the law was deterring drug abuse and illegal trafficking. The legislation established five classifications and placed marijuana in the most restrictive. The administration says it has "high potential for abuse," there is "no currently accepted medical use," and it's not safe even under medical supervision.
Despite this federal statute, ten states have enacted laws approving its use for patients with certain horrible ailments. The issue here is whether physicians who write prescriptions for patients whose distress could be alleviated by using marijuana will risk loss of their license or criminal prosecution. Federal law trumps state statutes. Thus, doctors are understandably reluctant to provide patients the marijuana option. It gets worse because malpractice insurers say physicians who recommend the drug will not be covered for lawsuits filed as a result of such treatment.
Second, even with a prescription, there is no way to legally obtain the drug. Now back to why the federal government wants it this way.
1. They claim no proof exists that marijuana is beneficial. It's true there isn't much data. Know why? The only legal use of Schedule I drugs is federally approved research. But the federal government won't approve such experiments. Makes you understand how Alice felt gazing up from that rabbit hole.
2. Another argument is that marijuana is illegal, even for medicinal purposes. Whose fault is that? Remember, the Controlled Substance Act was passed to prevent drug abuse and trafficking. But if physicians prescribe marijuana, they will limit its use. And if restrictions on obtaining it are removed, trafficking should not be a problem.
3. There is also the claim that marijuana is not safe. Consider who is eligible for such prescriptions. The primary group is those with end-stage cancer. Chemotherapy, the usual treatment, is poison. Other beneficiaries would be HIV/AIDS patients for whom commonly ordered drugs also are toxic. Notably, neither Mr. Bush nor Mr. Ashcroft appear to object to these drugs.
4. Finally, some argue marijuana doesn't make sick people better. Neither does morphine. They both make patients feel better rather than cure them.
Thus, again the question of why the Bush administration is taking on the terminally ill.
Kind of makes you wonder what they've been smoking.
-- Phyllis Coleman is a professor of law at Nova
Southeastern University in Fort Lauderdale, Florida where
she teaches bioethics.
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