Life, Liberty, [and the Pursuit of Happiness]: Medical Marijuana Regulation in Historical Context
42 Food and Drug Law Journal 280 (2019) (published as book excerpt)
Chapter from Lewis A. Grossman, Choose Your Medicine: Freedom of Therapeutic Choice in America (Oxford University Press, Forthcoming)
42 Pages Posted: 18 Dec 2018 Last revised: 5 Aug 2019
Date Written: December 11, 2018
The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception of a single promising decision in 1975, courts have uniformly rejected arguments for medical marijuana access. But the 1996 passage of Proposition 215 in California triggered a tremendous wave of state measures legalizing medical cannabis, as well as a dramatic change in American attitudes about the issue.
This chapter recounts this history in light of the special legal, political, and rhetorical challenges medical cannabis advocates have faced. First, many officials have opposed the legalization of medical marijuana, regardless of whether it offers therapeutic benefits, because of the public health harms and moral degradation they associate with the use of pot. Second, marijuana’s designation as a Schedule I substance under the Controlled Substances Act of 1970, and the DEA’s rejection of multiple citizen petitions to reclassify it, has placed extremely high obstacles in the way of researchers interested in scientifically assessing marijuana’s therapeutic efficacy. Third, federal government policies have lagged behind public preference and state law. Finally, medical marijuana supporters have had to negotiate an invaluable but fraught relationship with advocates for comprehensive marijuana legalization. The perspectives and goals of these two groups have overlapped and conflicted in fascinating and unexpected ways.
Keywords: Marijuana, Cannabis, FDA, DEA, California, History
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