Disease vs. Condition: Court's Debate

Dec 5, 2013

Florida Supreme Court justices who will decide whether medical marijuana will come up for a vote next November kept asking the same question over and over in a hearing Thursday morning:

What is the difference between a "disease" and a "medical condition" (and should the state leave it up to physicians to decide)?

The ballot language -- limited to a brief summary of the six-page amendment --says a "yes" vote would allow "the medical use of marijuana for individuals with debilitating diseases..."  The title would be:  "Use of Marijuana for Certain Medical Conditions."

The actual six-page amendment lists the "debilitating medical condition" for which pot could be prescribed as "cancer, glaucoma, HIV, AIDS, Lou Gehrig's disease, Crohn's, hepatitis C, Parkinson's disease, multiple sclerosis  or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient." See complete amendment text here.

"An ordinary voter would read this summary and think no one could have medical marijuana unless they have a debilitating disease," argued Solicitor General Allen Winsor, representing Florida officials led by the attorney general.

Some physicians might prescribe marijuana for anything and everything, the state maintained. "We all know there is a wide variety of opinions in the medical community about marijuana," Winsor said.

But Jon Mills, attorney for proponents of the amendment, said the context of the word "conditions" at the end of a list of terrible diseases makes clear that the reason for prescribing must be truly serious. It's not practical to write down every possible disease in the universe that could possibly respond to the treatment, he said, even in the future.

"To put this all in a list in the constitution is not a good policy decision," Mills said.

"If I suffered from chronic back pain, is that a condition or a disease?" asked Justice Barbara Pariente. "I thought this could only be prescribed for horrible conditions." 

On the back-pain question, it would be up to the individual physician, based on the language in both the summary and proposed amendment. Winsor maintained that certain phrasing in the amendment would give physicians immunity from state disciplinary action or civil suits if their pot-prescribing results in harm.

But Mills said nothing in the amendment takes away the statutory authority of the Department of Health to discipline physicians whose prescribing falls outside the "standard of care."

As Justice R. Fred Lewis reminded the packed courtroom, the court must decide only whether the ballot language is misleading -- not whether prescribing medical marijuana is a good idea.

The court usually delays a decision for months, but this one is expected to come sooner, since proponents are gathering signatures for the ballot. They have to gather nearly 700,000 and have them validated.

The summary says: “Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.”

In order to go into effect, voters would have to pass it by 60 percent.

The South Florida Sun-Sentinel answers basic questions about the issue.