High Hopes: International Perspectives on the Legalization of Marijuana as a Response to the American Opioid Epidemic

According to the US Centers for Disease Control and Prevention, more than 90 Americans die a day from opioid use, and with more than 42,000 deaths per year, this makes the United States home to the worst opioid epidemic in the world with death from accidental opioid overdoses surpassing car accidents and shooting deaths. [1]

 

But opioid use and subsequent addiction did not start out as a mere accident, as many users became reliant on the drugs and its derivatives in order to manage pain following accidents and surgeries as well as chronic pain.[2] Research from The National Institute on Drug Abuse postulates that marijuana use and prescription could help break our country’s ties to opioids as “marijuana has been shown to be effective in treating chronic pain as well as other conditions such as seizures, multiple sclerosis and certain mental disorders.”[3] Further, that same research suggests that the chemical receptors for both opioids and cannabinoids rely on similar pathways in the brain which affects the user’s tolerance to drugs as well as their dependence and addiction to them. [4] However, unlike opioids, death by marijuana itself is near impossible to nonexistent, and the risk for addiction and chemical dependency is leagues less than its deadly counterpart. [5]

 

Unfortunately, because marijuana is classified as a schedule I drugs by the Drug Enforcement Agency (a dangerous drug with no medicinal purpose), research on the effects of medical marijuana as a replacement for opioids is limited to the study of data from insurance companies. Further, because of the prohibitive cost of this data from private insurance companies, studies thus far are limited even further to data from Medicare.[6] Even with the limited date available, recent studies from Hefei Wen, an assistant professor at University of Kentucky and David Bradford, a professor at the University of Georgia, have found that opioid prescriptions are in fact lower in states with functional medical marijuana laws in place, with some studies showing a 14% reduction in prescriptions in those states. [7] Of course, these are not the first studies of their kind, as similar research from 2014 and 2017 found significant decreases in deaths from opioid overdoses in states with legal or medical marijuana.[8]

 

This is not to say that the legalization of marijuana is the solution to American opioid epidemic, and the researchers involved do not posit that it should be seen as a cure all. In fact, a study by Dr. Mark Olfson, a professor at Columbia University, found “marijuana users were six times more likely than nonusers to abuse opioids,” particularly when beginning marijuana use at a young age.[9] However, Olfson, Bradford, and Wei agree that prescriptions for medical marijuana could play a significant role in reducing the prescriptions of opioids, and potential abuse thereof, for the same pain.[10]

 

Researchers and doctors alike agree that further research must be conducted in this field, including research on recreational marijuana and opiate use, research on users that do not qualify for Medicare, and research that focuses on individual study. However, under the current DEA and FDA guidelines, access to the government approved marijuana needed is close to impossible – with approval taking seven years for one doctor planning to conduct a study on the issue.[11] The limited studies available are showing the medical and recreation marijuana could create some relief for the millions of Americans suffering and dying from opioid use and dependency. However, that relief will remain a only a potential until the DEA changes marijuana’s classification from Schedule I substance to one that allows researches to study the drug itself and its relationship with opioids fully.

 

The International Comparative:

 

            While the American opioid epidemic is a domestic crisis will little to no effect on the outside world, it is important to note that America is not the first country to deal with a lethal drug crisis of this size. In an article for the Huffington Post penned by the former Presidents of Switzerland and Portugal, the two leaders call on American Lawmakers to take a dramatic look at the current state of national drugs laws and how the hurt or help the very citizens they are meant to protect. Both Portugal and Switzerland were faced with heroin epidemics that led to an HIV crisis. Like in America, Portugal found itself in a place where addiction affected every facet of the population, with no regard to race or class, leading to a societal cry for real drug policy change.[12] These two countries responded to the public outcry of their citizens in a very real and dramatic way, changing the landscape of international drug policies, through the decriminalization of all drug use with a focus on “reducing the harms of drug use [and] on keeping people alive.”[13]

 

And keep people alive they did. Through decriminalization and the implementation of policies that focus on prevention, treatment, repression and harm reduction, Portugal has seen a dramatic decrease in drug-related deaths by 50% as well as a decrease in HIV and petty crime committed by users.[14] While the initial implementation of these policies was first criticized by the United Nations’ International Narcotics Control Board, the same board now points to Portugal as the model to follow when faced with a national drug crisis.[15] This is not to say that the two countries have become a free for all for drug users or traffickers, as there are still laws in place in both countries concerning the sale, transportation and manufacturing of drugs. Instead, drug addiction and drug use is viewed as an issue of public health requiring systems of support that can only be put in place by governments and that are only effective on a large scale.[16]

 

Certainly, the crisis taking place in America is different, with the origin on the opioid crisis spawning from a nationwide failure to regulate the prescriptions of legally obtained opioids and opioid derivative pharmaceuticals until addiction and death ran rampant throughout our society.[17] Now, with restrictions on prescriptions in place America faces a new problem as opioid dependent users turn to the streets for substitutes, which often contain fentanyl, a synthetic drug that is cheaper, stronger and thus more lethal, than their previous prescriptions.[18]

 

The former presidents of Portugal and Switzerland criticize the implementation of these restrictions without proper support measures for those already in the throes of addiction, noting America’s focus on reverting overdoses over the expansion of opioid substitution therapy (OST), which is currently only available in less than 10% of treatment centers.[19] Both former presidents stress the importance of an national focus on support and harm reduction, in particular for those addicts who are not ready, for a number of reasons, to begin treatment.[20]

 

Conclusion

 

This is not to say that America should suddenly decriminalize all drugs in hopes that it will see the same results as Switzerland and Portugal – particular without putting in place proper policies for support. However, it is a call to action for America’s leaders and legislators to take a hard look on how best to combat this still growing epidemic, even if it means allowing research on, and potentially legalizing, substances like marijuana which studies have shown have a positive effect on reducing death and dependency while providing relief without potential addiction for those in pain.

 

About the Author: Sara Firestone is a rising 3L at Penn State Law.


 

[1] Mark Lieber, Legal marijuana could help offset opioid epidemic , CNN (2018), https://www.cnn.com/2018/04/02/health/medical-cannabis-law-opioid-prescription-study/index.html

[2] Richard Harris, Opioid Use Lower In States That Eased Marijuana Laws, NPR (2018), https://www.npr.org/sections/health-shots/2018/04/02/598787768/opioid-use-lower-in-states-that-eased-marijuana-laws

[3] Leiber

[4] Id.

[5] Harris

[6] Leiber

[7] Harris; see also Leiber

[8] Leiber

[9] Harris

[10] Id.

[11] Natalie Grover, High Hopes Ride on Marijuana Amid Opioid Crisis Scientific American, https://www.scientificamerican.com/article/high-hopes-ride-on-marijuana-amid-opioid-crisis/

[12] Susana Ferreira, Portugal’s radical drugs policy is working. Why hasn’t the world copied it?, The Guardian (2017), https://www.theguardian.com/news/2017/dec/05/portugals-radical-drugs-policy-is-working-why-hasnt-the-world-copied-it

[13] Ruth Dreifuss & Jorge Sampaio, The Response To The Opioid Epidemic: And International Perspective The Huffington Post (2017), https://www.huffingtonpost.com/entry/our-international-perspective-on-americas-response-to-the-opioid-epidemic_us_59fb5607e4b01b474048fde8

[14] Id.

[15] Samuel Oakford, Portugal’s Example: What Happened After It Decriminalized All Drugs, From Weed to Heroin, VICE News (2016), https://news.vice.com/article/ungass-portugal-what-happened-after-decriminalization-drugs-weed-to-heroin.

[16] Dreifuss

[17] Id.

[18] Id.

[19] Id.

[20] Id.

Unmuting Immutability: How Strict Scrutiny for Transgender People is Changing the Game

On April 13th, Judge Marsha J. Pechman, a U.S. District Judge in the Western District of Washington, released the opinion in the latest saga of the Transgender military ban[1]. In keeping with the reasoning used by other judges who have ruled on this topic, she kept a previously ordered injunction in place, saying that the President’s “new” guidance on the subject was effectively the same as the old ban from 2017, and therefore was still under the effects of the prior injunction.[2]

However, Judge Pechman took her analysis a step further. In a previous opinion, the Court had stated that transgender people are “at minimum, a quasi-suspect class”.[3]  But this time around, the court concluded that transgender people are a suspect class, and therefore warrant strict scrutiny.[4] The Court takes all of the factors for a suspect class in turn, stating that transgender people meet all of the requirements[5].  This was an enormous move in the fight for LGBT equality, as courts historically have sidestepped the issue of deciding the appropriate level of scrutiny.

The most controversial of the elements required to be considered a suspect class is the argument of immutability. For the courts to consider a trait immutable, it must be “determined solely by the accident of birth and is not capable of or susceptible to change.[6] While the medical community has argued that being transgender is not something that can be changed[7], the courts have not taken a stance on the issue until Judge Pechman’s opinion. By determining that being transgender is immutable, and therefore subject to strict scrutiny, this could have far reaching effects into equal protection litigation for the transgender community.

This could reach into asylum law, particularly. While asylum in the US can be grated to those of a “particular social group”[8], there are no explicit protections for those that are being persecuted based on their sexual orientation or gender identity. The Immigration and Nationality Act does not define what a the requirement of “membership or a particular social group” means necessarily, however, case law has determined that it means a group of people, “all of whom share a common, immutable characteristic.”[9]

This definition on its own has not been enough to include transgender people seeking asylum in the past. But with the new decision, a federal court is now saying that being transgender is an immutable characteristic, one that deserves a higher level of scrutiny. This could have a ripple effect on transgender asylum seekers, and make the United States a safer harbor for those being persecuted because of their gender identity.

About the Author: Kylee Reynolds is a recent graduate from Penn State Law.


 

[1] Karnoski v. Trump, No. C17-1297-MJP, 2018 WL 1784464 (W.D. Wash. Apr. 13, 2018)

[2] Id. at 11

[3] Id. at 20

[4] Id.

[5]The Four factors are:

“(1) whether the class has been “[a]s a historical matter . . . subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987)

(2) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)

(3) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,” Bowen, 483 U.S. at 602

(4) whether the class is “a minority or politically powerless.” Id.; see also Windsor v. U.S., 699 F.3d 169, 181 (2d Cir. 2012), aff’d on other grounds, 570 U.S. 744 (2013)”

[6] Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

[7] American Psychiatric Association, What Does Transgender Mean?  (2018) http://www.apa.org/topics/lgbt/transgender.aspx

[8] INA § 101(a)(42)(A)

[9] Matter of Acosta, A-24159781 (March 1, 1985)