How we got here and where we should go from here

In 2006, when the case of Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), was decid­ed, it became clear to me that states are still the deci­sion mak­ers on accept­ed med­ical use of con­trolled sub­stances. We have 50 states with 50 drug laws, which would be total­ly unnec­es­sary if fed­er­al drug law over­ruled them all. So, med­ical use of con­trolled sub­stances is still a local, state deci­sion. Because our state drug law here in Iowa uses fed­er­al lan­guage for sched­ul­ing, I decid­ed to test this out on the Iowa Board of Phar­ma­cy in 2008 and ask them to find that mar­i­jua­na has accept­ed med­ical use in treat­ment in the Unit­ed States based on 12 state laws that accept­ed the med­ical use of mar­i­jua­na in treat­ment at that time. The board refused to answer that ques­tion and insist­ed that it must look at the sci­ence instead. I appealed from their rul­ing, and while my appeal was pend­ing, the board decid­ed to take an inde­pen­dent look at the sci­ence. When the board ruled unan­i­mous­ly in 2010 that mar­i­jua­na is med­i­cine based on sci­ence, the court dis­missed my appeal as moot. This is because it does not mat­ter whether the board finds that mar­i­jua­na is mis­clas­si­fied as a mat­ter of law or as a mat­ter of sci­ence. The fact the board ruled that mar­i­jua­na should be reclas­si­fied relieved them of hav­ing to answer the legal ques­tion. So, I got what I want­ed even though I did not get what I want­ed for the rea­son I gave, state laws in 12 oth­er states accept­ing the med­ical use of mar­i­jua­na in treat­ment in the Unit­ed States.

I did not tell the board what to do with mar­i­jua­na after it is removed from sched­ule I, because I would be per­fect­ly hap­py if mar­i­jua­na is removed from sched­ule I with­out any fur­ther action by the state, which would leave it legal­ly equiv­a­lent to dan­de­lions. The board rec­om­mend­ed plac­ing mar­i­jua­na in sched­ule II and enact­ing a med­ical mar­i­jua­na pro­gram like New Mex­i­co. Just last week, Sen­a­tor Joe Bolk­com from Iowa City, Iowa, actu­al­ly filed two bills, SF 2214 and SF 2215, which fair­ly accu­rate­ly reflect the rec­om­men­da­tions of the board in 2010. My posi­tion is that because leg­is­la­tors are not med­ical experts, and because we have the advise of the Iowa Board of Phar­ma­cy which rep­re­sents the Iowa Depart­ment of Pub­lic Health, that the leg­is­la­tors should enact these two bills. But, now I have to qual­i­fy that by say­ing the board was very spe­cif­ic about SF 2214, but not very spe­cif­ic about SF 2215. The board rec­om­mend­ed that we enact a med­ical mar­i­jua­na pro­gram “like” New Mex­i­co, but did not say “inden­ti­cal.” So, there is some room to nego­ti­ate here on SF 2215.

Because SF 2214 and SF 2215 were intro­duced on the last day they could have been approved by the Sen­ate Com­mit­tee on Human Resources, they are both dead for this year and will have to be refiled again next year. Here’s where I think we should go with these two bills next year. I think these two bills should be com­bined into one bill, and here’s why.

FIRST:

Reclas­si­fy­ing mar­i­jua­na as med­i­cine does­n’t make much sense with­out cre­at­ing a means of access. So, these two bills real­ly should be one bill, not two. The rea­son they end­ed up as two bills is a long sto­ry. Sen­a­tor Bolk­com just ignored the board in 2011 and 2012 and did­n’t file any­thing the board rec­om­mend­ed. In 2013, Sen­a­tor Bolk­com attached the lan­guage in SF 2214 to his bill from 2011 and 2012, which is SF 79, and which is also not what the board rec­om­mend­ed. So, now, Sen­a­tor Bolk­com has final­ly intro­duced bills the board rec­om­mend­ed, but now they are two sep­a­rate bills instead of one. Sen­a­tor Bolk­com real­ly should get this right in 2015 and file every­thing the board rec­om­mend­ed in just one bill. It’s just so much clean­er that way.

SECOND:

New Mex­i­co’s leg­is­la­tion spec­i­fied an ini­tial list of con­di­tions, and then gave the New Mex­i­co Depart­ment of Health the author­i­ty to add addi­tion­al con­di­tions. This is a bad idea for Iowa. Leg­is­la­tors should not be decid­ing which con­di­tions mar­i­jua­na should be used in treat­ing, nor should leg­is­la­tors be decid­ing the best forms of deliv­ery for those con­di­tions. Med­ical deci­sions should be made by med­ical pro­fes­sion­als, not leg­is­la­tors prac­tic­ing med­i­cine with­out a license.

CONCLUSION:

So, I see how we could fol­low the spir­it of the Iowa Board of Phar­ma­cy’s rec­om­men­da­tions and do it bet­ter than New Mex­i­co by mak­ing our state law the first state law to reclas­si­fy mar­i­jua­na as med­i­cine and to leave the med­ical deci­sions to the Iowa Depart­ment of Pub­lic Health. I’m not say­ing this will hap­pen. After all, no oth­er state has got­ten this right yet. But, Iowa could be the first state to get it right.

And, remem­ber, by remov­ing mar­i­jua­na from sched­ule I, we’ve basi­cal­ly said it does not belong in fed­er­al sched­ule I, so we’ve made the crit­i­cal argu­ment that needs to be made to address fed­er­al sched­ul­ing (which has not yet been resolved).