The Oregon Medical Marijuana Act
By Dr. Rick Bayer
Cannabis or marijuana has been an important and effective herbal medical therapy for thousands of years. In our life and times, we now call it medical marijuana (mmj), and federal prohibition laws make it very dangerous to prescribe, produce or use. But this is slowly changing. State medical marijuana laws granting limited access to the herb and safety from police interference now cover about 20% of all Americans. The first state to remove criminal penalties within limits for mmj use was California in 1996. Oregon voters passed the Oregon Medical Marijuana Act (OMMA) in 1998.
The Oregon Medical Marijuana Program (OMMP), a part of the Oregon Department of Human Services (DHS), was created to administer the OMMA. If a patient has a debilitating condition, as defined in the OMMA, that patient applies by having his/her physician certify the qualifying condition and that mmj “might help”. (For more information, go to the website, www.omma1998.org. This site has a link to DHS OMMP.)
Debilitating conditions include cancer, glaucoma, HIV infection, or symptoms of wasting (cachexia), severe pain, severe nausea, seizures, or persistent muscle spasms, including but not limited to spasms caused by multiple sclerosis. OMMP issues a one-year permit to qualified applicants who pay the permit fee. Registered patients and caregivers then enjoy limited exceptions from certain areas of Oregon criminal law or are “decriminalized” within limits if there is a valid permit.
Successes of the OMMA are numerous. At the end of 2003, there were over 10,000 patient and caregiver cardholders registered with the OMMP. Applications continue to rise as more Oregonians learn about the OMMA. Over 1200 Oregon physicians participate in the OMMP—an encouraging number, but more would be better, given the need. There are many who suffer from debilitating conditions who cannot find a doctor to help them because they live in areas where no physician participates in the OMMP.
It is gratifying to realize how the OMMA has helped many suffering Oregonians. Because of confidentiality concerns or costs, not all mmj patients register with OMMP, so the actual numbers of mmj patients are higher than records show. The estimated revenue per biennium to the OMMP from patient permit fees tops $1 million now. This pays for the administration of OMMP, which has never cost taxpayers a dime. Recently, OMMP announced fee reductions.
The most commonly reported debilitating condition reported in applications to the OMMP is severe pain. (It must be noted here that in 1997, the American Society of Addiction Medicine affirmed that physicians are obligated to relieve pain and suffering of their patients, including those with concurrent addictive disorders.) Yet of the approximately 9000 MD/DOs who engage in active clinical practice in Oregon, only a fraction of them routinely serve patients with terminal and chronic illness and, as noted above, only 1200 participate in OMMA. Only a minority routinely prescribes opioids and other scheduled drugs for chronic pain.
In spite of glowing data at the 5-year mark, the OMMA still faces opposition, particularly from law enforcement and politicians. Some of the most entrenched opposition comes from the administrators of OMMP itself. While OMMP management has consistently failed to issue permits within 30 days (as required by law), they always seem to have time to work for changes in the OMMA that would decrease patient access to pain and symptom management. OMMP also is attempting to become more involved in the practice of medicine while seeking to increase the reporting burden on physicians without proof of improving public health. Finally, spending patients’ money without adequate benefit to patients is a recurring irritation.
In the 2003 Oregon Legislative Session, Law Enforcement (LE) and DHS collaborated to pass House Bill 2939 in the Republican-controlled House but fortunately it was stopped in the split Senate. It would have permanently denied an OMMP permit to anyone with a drug crime. This sort of legislative gambit seeking to overturn the will of the people is unethical. As affirmed by the American Society of Addiction Medicine (noted above), sick persons should never be prohibited from receiving adequate pain and symptom control. People caught with illegal quantities of prescription drugs (e.g. Rush Limbaugh) are still legally eligible to receive pain control in their future, so why the discrimination? There is never a valid reason to revoke, suspend, or deny an OMMP permit to a patient, regardless of record, when his/her physician says it might help.
There are other challenges rising. For instance, even though the OMMA was written so each patient can have his/her own garden of 3 mature and 4 immature plants, LE seeks change so there would be no more than one garden per address. This would mean spouses and roommates could not each be patients and grow a garden together. Naturally, patient advocates oppose these efforts by LE and DHS. Recently, Democratic Senator Bill Morrisette asked DHS to chair a legislative advisory committee to see if there is consensus among proponents and opponents about the OMMA that can be presented to the 2005 Oregon legislative session. An Oregon poll showed over 76% of Oregonians support “seriously ill patients to use and grow their own medical marijuana with the approval of their physician”. A new mmj ballot initiative, the OMMA2 is collecting signatures www.voterpower.org/news/init_toc.html for the 2004 ballot.
Ten states: Oregon, Washington, California, Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, and Maryland now have medical marijuana legislation. The conflict between state and federal laws has spawned a series of court fights and federal bills concerning questions of states’ rights, medical necessity, and drug policy enforcement. A federal bill to cut funding to federal drug enforcement authorities for raiding facilities where marijuana is grown or distributed for purported medical use was defeated partly because of the anti-mmj stance of local prohibitionist and Democratic Congressman David Wu, of Oregon. He was quoted in the Los Angeles Times as saying the “use of marijuana is medically unnecessary and prone to abuse.” Of course, Wu has no medical credibility, but remains an obstacle to adequate pain management among sick and dying Oregonians.
Outside of federal raids orchestrated by the Bush/Ashcroft administration and legislative failures described above, recent court rulings have been more favorable to mmj. The US 9th Circuit Court of Appeals held that the federal Controlled Substances Act (CSA) doesn’t necessarily dominate state laws. This means the state mmj laws in the 9th Circuit (including Oregon) are federally valid for the moment, but that ruling may be appealed to the US Supreme court. The US Supreme Court decided not to hear appeals of a 9th Circuit ruling that rejected the US Justice Department’s claim the CSA empowered the feds to revoke the narcotics prescribing licenses of doctors who recommended marijuana. This preserves freedom of speech for doctors and patients—for now.
Things have progressed since a small group of us wrote the OMMA and pursued the political campaign that resulted in the November 1998 victory. Over the last 5 years, many patients have benefited from the OMMA. Oregon taxpayers have saved money through less marijuana prosecutions and because of a completely patient-funded OMMP. Most importantly, we are a little closer to a world where pain and symptom management of chronic and terminally ill persons can make progress without the heartless bludgeon of reefer-madness era prohibition.
Rick Bayer, MD is board-certified in internal medicine, a fellow in the American College of Physicians, and practiced in Lake Oswego for many years. Co-author of Is Marijuana the Right Medicine For You? A Factual Guide to Medical Uses of Marijuana, he was a chief petitioner for the Oregon Medical Marijuana Act in 1998, and manages www.omma1998.org that includes a medical cannabis/marijuana bibliography.
