The Legal and Halakhic Question of Medical Marijuana
Printer-friendly versionThe Observer - Yeshiva UniversityBy Simi Lampert
The subject of medical cannabis is a controversial topic spanning the political, judicial, social, and moral domains. The stigma associated with this Schedule I drug is only one of many factors which complicate honest discussion of marijuana's medicinal benefits versus its potential for harm. The herbal form of the cannabis plant has several well-documented beneficial effects, including amelioration of nausea, the stimulus of hunger, and a broader analgesic effect.
Rabbi Dr. Moshe D. Tendler, a rosh yeshiva (yeshiva head) at the Rabbi Isaac Elchanan Theological Seminary and the Rabbi Isaac and Bella Tendler Professor of Jewish Medical Ethics, said in a phone interview that in light of all the benefits provided by medical marijuana, the "concern [about medical marijuana use] is not adequate" enough to keep it from helping sick patients. In a 2004 poll conducted by CNN, 72% of adults age 45 and above agree with the statement that adults should be allowed to legally use marijuana for medical purposes if a physician recommends it. Yet this drug remains forbidden to many sick people across America who stand to gain from cannabis treatment, including terminally ill cancer and AIDS patients.
"I think the government has much bigger issues to focus on," stated Dr. Brycelyn Boardman, a chemistry professor at Stern College for Women, "and it is these 'celebrity' issues that often overwhelm political platforms, and the media."
Presently, the legal status of medical marijuana remains divided, with the federal government declaring it an illegal substance even while fourteen states have laws allowing for the restricted use of cannabis for therapeutic purposes, and a number more are considering passage of such laws. With the recent administration change, the government's policies have begun shifting.
On October 19th, the Justice Department announced that it would no longer prosecute medical marijuana patients or distributors, provided they act according to their state laws. Previously, it was possible to raid marijuana distribution centers even while they operated under state law.
Perhaps even more significant is the recent decision of the American Medical Association (AMA) to support declassifying marijuana as a Schedule I drug. Under the U.S. Drug Enforcement Administration, drugs are assigned a level or 'schedule' in order to regulate controlled substances. While drugs such as cocaine and morphine are Schedule II, considered to have high potential for abuse and addiction but also medically legitimate, marijuana is grouped alongside LSD and heroin in Schedule I, described as having "no currently accepted medical use in treatment in the United States" in addition to its potential for abuse. Advocates of legalizing medical marijuana wish to, at the very least, shift marijuana from Schedule I to II, and as of this month these groups have been joined by the respected AMA.
As with any medical ethical dilemma, the authorities' main struggle lies in attempting to balance the beneficence and non-maleficence of this drug. This means that the curative powers of marijuana must be weighed against its possibility to affect harm. On one hand, evidence exists that cannabis has been used for centuries for its ability to stem nausea, relieve pain, and even assist in weight gain, among other remedial faculties. In spite of these medical uses of marijuana, doctors are presently permitted to prescribe cocaine and morphine -but not marijuana.
Marijuana, however, is so commonly exploited as a recreational drug that the stakes are higher. The legalization or decriminalization of medical cannabis and the accompanying accessibility of the plant raises the concern of increased recreational use. PhD candidate at University of Maryland, Laura Frank, who teaches medical ethics in Baltimore, believes that the medical benefits of marijuana far outweigh the risks. She maintains that there is no reason to bar the legalization of cannabis for strictly regulated medical use, and that the only reason it has not happened thus far results from stigma attached to marijuana. As she points out, even over-the-counter pain relief pills can lead to intense illnesses; everyday commodities such as cigarettes can cause lethal lung cancer, yet the only regulation on tobacco is taxation. The balance of potential benefits and harm of marijuana should be left to medical experts who are aware of the needs of each patient.
Contemporary halakhic (Jewish legal) thinkers must address many of the same issues as secular ethicists. In addition, since marijuana itself is still illegal under federal law and in most states, poskim (deciders of Jewish law) must consider whether the principle of dina d'malkhuta dina ("the law of the land is the law") applies to the situation. This question alone is comprised of an assortment of other matters, such as understanding which laws are actually regulated by this halakhic mandate. Furthermore, should marijuana cure or even relieve pain, this allows for overriding legislative matters with the more important concern for an individual's wellbeing.
While dina d'malkhuta dina is pertinent specifically to marijuana, the remaining halachic quandaries relate to other pharmaceutical drugs as well. Were this to be properly regulated, candidates for medical marijuana would be those suffering severe pain. Under Jewish law, the severe physical pain experienced by these patients is the same as illnesses that take precedence over virtually all Jewish laws, such as breaking the Sabbath in order to administer the drug.
What about the risks of marijuana, which are present even when regulated by medical and legal authorities? The Talmud, in discussing bloodletting, concludes that socially accepted risks, such as the potential harm involved with the side effects of medications, are permitted because "God preserveth the simple" (see Talmud Bavli, Shabbat 129b for further elaboration).
While halakhic parameters seem to allow for allocation of medications, this must be understood alongside a key phrase in Rashbam's (Rabbi Shmuel ben Meir, 12th c. France) discussion on recreational drugs in Talmud Bavli Pesachim 113a. He asserts that any medication is to be avoided "unless there is no alternative available," as any drug can, as Rashi (Rabbi Shlomo Itzhaki, Rashbam's grandfather) states there, become habit-forming and expensive. The legalization of medical marijuana needs "very strong support from the Torah community," Rabbi Dr. Tendler believes. "We have a specific halakha to alleviate pain."
One of the major issues currently impeding the progress of legalizing medical cannabis is the lenient and somewhat sloppy standard in California, the leading state in legal medical marijuana. Aside from properly licensed medical marijuana dispensaries, Los Angeles alone boasts approximately 1,000 illegally operated distribution shops. "There is a medical marijuana place literally a block away from my apartment at UCLA, it's VERY easy to get it," informed a college student at University of California Los Angeles. "You need a doctor's note saying you have a headache or PMS, or I think even stress can be a reason."
One Los Angeles Times journalist relates how he successfully applied for the required doctor recommendation needed to obtain the drug from a dispensary. He went in to an approved doctor with complaints of mild back pain, which he has been able to keep under control with occasional painkillers and some stretching. The doctor, a gynecologist who proclaimed he knew "nothing about backs," wrote him the recommendation after a 10-minute exam, during which the doctor never once rose from his seat or touched the investigating journalist.
Should America one day choose to legalize medical marijuana on a federal level, the government must take care to properly regulate the distribution of the drug to prevent exploitation for recreational use, and ensure that it gets to the patients who can benefit most from its therapy.
