SACRAMENTO, Calif. (Oct. 7, 2021) – Last week, California Gov. Gavin Newsom signed a bill into law that requires health care facilities in the state to allow terminally ill patients to use medical marijuana despite federal cannabis prohibition.
Sen. Ben Hueso (D) along with a large bipartisan coalition of cosponsors introduced Senate Bill 311 (SB311) in February. Titled the Compassionate Access to Medical Cannabis Act or Ryan’s Law, the legislation requires health care facilities to allow terminally ill patients registered in the state medical marijuana program to use marijuana in the facility. The law includes some restrictions on marijuana use inside facilities including a prohibition on vaping or smoking.
Medical facilities aren’t required to provide or dispense cannabis under the law.
“It is inconceivable to me that, in a state where medical cannabis was legalized more than 25 years ago, those in deepest suffering receiving treatment in our state’s healthcare facilities cannot access this proven, effective and prescribed treatment,” Hueso said in a press release. “Instead, terminally-ill patients in California healthcare facilities are given heavy opiates that rob them of their precious last moments with family and friends. This is a simple, yet critical, move that will provide relief, compassion and dignity to terminally-ill Californians.”
Newsome vetoed a similar bill in 2019, fearing that allowing marijuana in healthcare facilities contrary to federal law could jeopardize hospital funding.
According to Marijuana Moment, Hueso asked the federal government for clarification and received a letter from the Centers for Medicare and Medicaid Services (CMS) stating that no federal regulations currently in place specifically address this issue. The letter went on to say that the agency isn’t aware of any cases where funding has been pulled because a hospital allows patients to use medical cannabis.
“With this confirmation from CMS and the safeguards in the law, we are confident that healthcare facilities have the necessary authority to implement these provisions while ensuring the safety of other patients, guests, and employees of the healthcare facility, compliance with other state laws, and the safe operations of the healthcare facility,” the senator said.
While the state did get tacit permission from the feds before enacting this law, it represents a huge shift in policy, particularly when you zoom out and look at the big picture.
“In early 1997 – the Clinton administration threatened to yank medical licenses of doctors who merely “recommended” marijuana for patients. Now, hospitals will be allowing it on site? This is a huge move that only came about because states have defied the feds to the point that they simply can’t enforce prohibition even if they wanted to,” Tenth Amendment Center executive director Michael Boldin said.
EFFECT ON FEDERAL PROHIBITION
While marijuana has become more widely accepted across the U.S., under federal law, it remains illegal. As we’ve seen with immigration sanctuary cities, when state and local enforcement ends, the federal government has an extremely difficult time enforcing their acts.
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
California legalized medical marijuana in 1996 and recreational cannabis in 2016, removing a huge layer of laws punishing the possession and use of marijuana in the state. But federal prohibition remains in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
A GROWING MOVEMENT
Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. Earlier this year, New York, New Mexico, and Virginia. Connecticut became the 18th state to legalize adult-use marijuana earlier this year.
With 36 states allowing cannabis for medical use, and 18 legalizing for adult recreational use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.
The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations, or mandates down our throats.
The move to legalize recreational marijuana in Ohio highlights another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – the law tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.
The expansion of the state’s medical marijuana program in California highlights another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – the law tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.