What Bill of Rights?

By Vin Suprynowicz
web posted August 14, 2000

In California these days, the federal government is single-handedly trying to debunk two ancient myths which many well-intentioned Americans have long taught their children. To wit:

1) If you don't like the law, all you need do is follow the proper procedures to get a change before the appropriate legislative body or onto your state ballot. The majority will then determine in an orderly fashion whether your idea is a good one, and that will be that;

2) The reason the government licenses physicians is not to allow the political control of medical science -- say, barring physicians from even discussing useful treatments -- but simply to guarantee consumers that would-be physicians have met certain minimal and well-established standards of training and conduct. These licensing schemes, for instance, would never be used to allow politicians or bureaucrats to blackmail physicians into practicing medicine the way the regulators see fit, threatening to put our doctors out of business for, say, merely recommending natural herbs which compete with the products of politically well-connected pharmaceutical firms.

What has now happened in California is that the voters went to the polls a few years back and overwhelmingly approved the medical use of marijuana, in cases where a physician recommends that smoking that medically active herb might be of use to a specific patient -- say, a glaucoma sufferer, or an AIDS patient like author Peter McWilliams, who died in California last month when he choked on his own vomit, unable to hold down his chemotherapy drugs after a federal judge ordered him to stop following just such a doctor's recommendation.

In passing the Compassionate Use Act, Californians didn't even require that a doctor write a formal "prescription" for marijuana -- sidestepping the problem of how to "fill" such a prescription when federal law would still frown on a licensed pharmacy stocking the plant. Only a less formal "recommendation" is needed.

But, ignoring the limitations placed on their power by the 9th and 10th Amendments -- which restrict the federal government to meddling in only those affairs itemized in the U.S. Constitution (a document which one searches in vain for any reference to restrictions on medicine or medical practice ) -- federal authorities aren't having any of it.

Answering an ACLU lawsuit which seeks to block the practice, Justice Department lawyers are now arguing in U.S. District Court in San Francisco that Washington has the right to punish, put out of business, and even arrest California doctors who recommend marijuana use for specific patients, just as was envisioned by California voters when they went to the polls in 1996.

"It doesn't matter what California says," snarled Justice Department lawyer Joseph Lobue, in court two weeks ago.

The federals now threaten to take away the doctors' licenses to write prescriptions for "controlled" substances -- effectively putting them out of business or forcing them to leave the country (as was the outcome of a similar regulatory coup against Las Vegas' own Dr. Dietrich Stoermer, even after the good doctor was unanimously acquitted of "writing too many painkiller prescriptions" in a public trial in 1993.) And that further violates the doctors' free speech rights under the First Amendment, the ACLU argues.

Drug Czar Barry McCaffrey
McCaffrey

(Not content to stop there, Drug Czar Barry McCaffrey has also threatened to bar any such wayward physician from participation in the Medicare and Medicaid programs -- a bit like threatening to throw Br'er Rabbit in the briar patch -- and even to bring criminal charges.)

The government action here hinges on a negative, of course -- the fact that the federal Food and Drug Administration has never "approved" marijuana for medical use. But pharmaceutical firms now spend millions of dollars to usher each new nostrum through the FDA approval process -- and none will bother to fund clinical trials for marijuana, since there'd be no way to patent and thus make back their investment on what is, after all, a common roadside weed.

Blue-ribbon White House panels have been recommending the de-criminalization of marijuana since the days of Richard Nixon. The herb was perfectly legal and in medical use from the middle ages up until the 1930s, when the current federal prohibition resulted from a combination of the yellow journalism of William Randolph Hearst (who ordered his columnists to stop calling the plant by its well-established name, Indian hemp, and instead dub it "Marijuana," the better to link it with racist fears of the growing Mexican minority) and the need to find new work for recently-unemployed (alcohol) Prohibition agents.

In recent years, majorities of voters in Alaska, Arizona, California, Hawaii, Maine, Nevada, Oregon, and Washington state have ruled that doctors -- not police or politicians -- are indeed the right folks to decide when marijuana might be medically useful for some patients. It's the federal government which is motivated here not by medical science or compassion for the sick, but by sheer politics.

The founders intended ours to be a pluralistic union, in which voters could always "vote with their feet" -- just as religious nonconformists used to flee Massachusetts for Roger Williams' more tolerant Providence Plantation. Thomas Jefferson himself warned that we would find ourselves on the verge of Bonapartist tyranny should ever the 13 (now 50) states be reduced to mere administrative subdivisions of the central government, "like the 'departments' of France." And isn't that precisely what Gen. McCaffrey and prosecutor Lobue now have in mind?

The Justice Department's position here is wrong on every count, betraying a willingness to sacrifice even the lives of the sick for the sake of bureaucratic empire-building and political expediency.

And that's disgusting.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. His book, "Send in the Waco Killers" is available by dialing 1-800-244-2224; or via web site http://www.thespiritof76.com/wacokillers.html.

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