THE LEGAL AND HALAKHIC QUESTION OF MEDICAL MARIJUANA

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.

On the other hand, drugs from this class, cannabinoids, have been shown to
negatively impact memory, perception and judgment, as well as cause
respiratory diseases when ingested via smoking.

In spite of all this, advocates point out that all pharmaceutical drugs
have their risks and side effects accompanying the powers to heal and
relieve pain.

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. Additionally, marijuana has potential as a "gateway
drug" leading to interest in and possible addiction to other and worse
drugs.

The medical community is currently divided on whether marijuana itself is
an addictive product.

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.