Election Day Issues Part I: Let's Talk About Amendment 2
Jacob Phillips is a third-year law student at the University of Florida Levin School of Law and received his B.A. in History from the University of Central Florida.
With Election Day upon us, we are planning on running a couple of posts regarding the elections. Coming posts will be more general, but today I wanted to focus specifically on an issue that has caught the attention of many within the church: medical marijuana. Voters in Florida will be faced with a decision regarding Amendment 2, which is the Medical Marijuana amendment.
A couple of quick notes before I begin, though. First, our pastor, Benny Phillips, is very careful to avoid telling anyone how to vote on a particular issue or candidate (with the possible exception of various pro-life issues). Voting to permit the use of marijuana for medicinal purposes is certainly not an issue for which there is a clear, biblical answer, and the purpose of this post is not to convince you to vote one way or the other. Second, in the spirit of full disclosure, I have written previously on a different blog that I think the United States should decriminalize the possession and consumption of cannabis. My reasons for doing so, however, were mostly related to the racist and counter-productive enforcement and implementation of the War on Drugs. I think there is a clear distinction between decriminalizing pot and legalizing pot, and I’m unconvinced that Amendment 2 has very much to do with the decriminalization of pot more generally. All that to say that I consider myself unbiased on this issue. (Nothing to see here…move along…I’m not biased because I’m telling you I’m not biased….WHY DON’T YOU THINK THAT MAKES PERFECT SENSE!?!?!)
There’s been a lot of discussion about Amendment 2 in recent weeks – so what would its passage actually do? Let’s break down some of the major issues related to the amendment.
Who would be able to procure pot for medicinal purposes?
The answer seems to be anyone that a doctor determines has a “debilitating medical condition.” What, then, qualifies as a debilitating medical condition? The amendment lays out several specific conditions: cancer, multiple sclerosis, glaucoma, HIV, AIDS, Crohn’s disease, hepatitis C, etc. Opponents of the amendment, though, are concerned with what comes after the specific conditions listed. A “debilitating medical condition,” according to Amendment 2, is also “…or other conditions [other than the ones the Amendment already specifically listed] for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.” It’s certainly a broad definition, and arguably does not facially have much to do with whether a condition is actually debilitating. Hypothetically, if I have a stomach-ache, a doctor could determine that stomach ache is a “condition” and that the medical use of helping the pain of the stomach ache would outweigh the risks to my personal safety.
There are two counterarguments, however. First, even the latter “other conditions” part is within the context of the word “debilitating.” Doctors are smart, medically-licensed individuals with years and years of education and practice and have sworn an oath to “first, do no harm.” They understand that Amendment is simply admitting that they could never possibly think of and reduce to writing every single debilitating medical condition – the writers, after all, were lawyers, not doctors. They simply have enough respect for doctors to admit that there are probably other “debilitating” conditions that they (the lawyers, that is) cannot think of. Doctors really will, so the argument goes, restrict themselves to actually debilitating medical conditions, not the common cold.
Second, while there are potentially significant benefits to using marijuana for medicinal purposes, there are also risks related to using marijuana. If someone has a condition that is not debilitating, than the benefit (which won’t be that significant, since the pain itself is not significant or long-lasting) will not outweigh the inherent harms. So even if doctors are not smart enough to realize that the Amendment is not saying they can consider any run-of-the-mill sickness to qualify, they understand pain and pot enough to contemplate a correct cost-benefit analysis.
Those are the arguments. Like Fox News, I report, you decide (hahahahahaha).
But what if doctors are not as careful as the hypothetical counter-arguer assumes they will be? Will they be civilly liable?
Perhaps the biggest debate surrounding Amendment 2 is the issue of redress, lawsuits, and civil liability (I see you, John Morgan). The Amendment precludes criminal or civil liability from being assessed to any caregiver, user, or physician, so long as their actions are in accordance with the law. So what does that mean? If someone gets high, you know, for medical reasons, and then stumbles to a Taco Bell, becomes fascinated with the implications that we have harnessed the power of fire (I mean, just from a historical perspective, man, that’s, like, our greatest achievement) and then, to test a theory, lights my Mercedes Benz on fire, I can’t sue him???? (It was definitely a him). Well, first, we need to understand how this would all work, according to the Amendment.
Doctors would first determine whether someone has a debilitating medical condition. The “qualifying patient” (i.e. the person with the debilitating medical condition) would then be allowed to purchase marijuana (health insurance companies are not required to pay any of the costs) from facilities that the Department of Health determines qualify to sell marijuana for medicinal purposes. Additionally, individuals can qualify as “caregivers.” If they assert that they are responsible for someone’s care due to that person’s sickness, and if the Department of Health so finds, they can be issued “caregiver cards,” which allow them to also purchase marijuana for the medicinal usage of the person within their care. If all actions are in accordance with that scenario, than no one can be held civilly liable. If not, then they could be. (A doctor could be sued for finding someone who does not have a debilitating medical condition to have a debilitating medical condition, a caregiver could be sued for giving marijuana to someone not in his or her care, and a user could be sued if they haven’t been found to have a debilitating medical condition).
Is that too broad? It really depends on how the Amendment is interpreted by the courts. There doesn’t seem to be anything that would stop someone from bringing a lawsuit based on negligence. It seems that Amendment is trying to alleviate the fears of doctors (who probably would not find people to have debilitating medical conditions if they thought they would be sued if that person then ever causes harm to someone else) while also preventing users from being sued merely because of their usage. In other words, they don’t want parents having their kids taken away simply because they are using pot for medical purposes, for instance. But if the pot is used negligently (as in our hypothetical above) it’s unclear whether the Amendment would be read broadly enough to preclude liability in that case.
Why isn’t a prescription required?
Because such a requirement would violate federal law. Under federal law, doctors cannot prescribe marijuana. The Amendment is basically semantics – it’s a workaround to avoid federal liability. Instead of prescribing pot, doctors only decide whether the patient is “qualified” to use pot for medical purposes; everything else is up to the patient. Do they want to pay for the pot (health insurance companies will not pay for pot, but they will pay for normal drugs)? Can they get it? That’s up to them. Of course, that leads to more questions – will the doctor determine not only whether the patient is qualified, but how much pot they qualify for? If the doctor makes such a determination, are sellers required to limit their sale to something that seems like it will be in accordance with the doctor’s findings? How will sellers make such a determination? How qualified do sellers have to be? Will they be able to make such calculations?
Those are merely some of the issues – I hope it’s helped you understand the Amendment more and maybe helped you develop a conviction on the issue. The expansion of legal access to use pot means that, as Christians, it is going to be important to begin to develop convictions on these issues. Could we in good conscience use pot for medical purposes? What if we had a suffering family member that could benefit from its usage? What if we had to be the caregiver? How are we going to interact with society on this issue? If we determine that we cannot in good conscience use pot or give it to someone else to use, and if we think it’s always unethical, how do we express our views with compassion, intelligence, and biblical conviction? Regardless of what happens with Amendment 2, these issues are not going away – let’s start becoming convinced in our own minds about what we believe.
(Ok, fine, if you insist on knowing my personal opinion -- I am voting No, for the simple reason that I do not think this is by any stretch a constitutional issue. If we want cannabis decriminalized, or even legalized for a variety of purposes, there's a process we can enact, and it doesn't involve amending our constitution.)