Medical marijuana advocate Rob Corry doesn't buy either of these theories. For instance, he predicts other senators won't want to put the 21-and-under regs back into SB-109, Romer's bill to clarify the relationship between doctors and medical marijuana patients, because of questions about constitutionality.
"I don't think the majority of the legislature wants to saddle the State of Colorado with a lawsuit -- which it may get anyway, regardless of this particular issue," he says.
On Monday, Romer noted that his original provision requiring patients under 21 to get two referrals before being okayed for a medical marijuana card -- as a way of reducing fraud, which he feels is rife in this age group -- fell by the wayside in part because "members felt it violated equal protection, since there's already a specific reference to one referral in the constitution. They thought the second referral was too high an impediment."
With that in mind, Romer has tweaked the approach, calling for just one referral -- but also asking patients to get "an evaluation from somebody who's a specialist in substance abuse." Doctors would have the power to approve a card even if the substance-abuse pro recommended against it -- but "if the doctor continues to ignore the advice of substance abuse counselors, the board of medical examiners is going to increase scrutiny on them," Romer said. The likely result, he predicted, was that "there will be doctors losing their licenses for false referrals."
Mr. Corry, the floor is yours.
"We're against these ideas," Corry says. "Debilitating medical conditions don't have age limits. People of all ages suffer from various debilitating medical conditions, such as cancer. It makes no sense to create an arbitrary group based solely on their age that has to go through more costly efforts before they get the medicine they need.
"It's a bad idea from a policy standpoint, but also from a legal standpoint," he continues. "The constitution is quite clear. To qualify if you're eighteen or over, you need the advice of a doctor, period. It's a minimum requirement spelled out in our constitution, and to create an additional burden on them is inconsistent with the constitution.
"There is a provision for people under the age of eighteen, and there are enhanced requirements of them -- which is the advice of two doctors rather than one and parental consent. There are probably half-a-dozen minors on the registry, to my knowledge. But people who are between eighteen and 21, many of them don't have a lot of disposable income. They''re young, just getting started, maybe still in school. So this extra requirement is an attack on one of the most vulnerable segments of our population, at least financially."
According to Romer, evidence of phonied-up recommendations isn't tough to find. "Every classroom I've been in with young people, and in conversations with people in my own nuclear family, when I ask them, 'Do you know somebody under the age of 21 with a medical marijuana card who's not chronically ill?,' nine out of ten times, hands go up," he said earlier this week.
That's not enough to convince Corry.
"I'm not here to second-guess a doctor's informed, educated, trained decision," he allows. "And for Romer to be basing legislation on teenagers who raise their hands in class is very questionable. These kids are smart; they know what he wants to hear. But the only person qualified to make a diagnosis about a debilitating medical condition is a physician. Not me, not Chris Romer, not a teenager in his family who's basing his opinions on totally anecdotal information. It's a problem if a policy that affects us all is being made on this unscientific basis."
Corry acknowledges that the recommendations of substance-abuse experts would be nonbinding. That's not so bad on one level, he believes: "I'm glad it's not an absolute bar to people getting legal." However, he's troubled by the prospect that "doctors' licenses could be taken away in retaliation for exercising their independent medical judgment. And then there's the idea that a non M.D. could be the reason an M.D. loses his license. That would cause a major chilling effect on doctors giving advice to patients."
What other aspects of SB-109 might lead to litigation? "I see the redefinition of what is a doctor in good standing as a major problem," Corry says. "It essentially gives the DEA veto power over whether a doctor can issue advice to patients or not. And the DEA has demonstrated extreme hostility toward Colorado voters. We should not give them any foothold whatsoever in medical marijuana."
Romer's warning of a backlash and potential dispensary ban doesn't cause Corry much distress.
"Communities can't ban a dispensary," he says. "That's what we established in the Centennial case. They tried to ban medical marijuana. We sued and got a preliminary injunction from a district court in Arapahoe County.
"This is a constitutional right. You can't ban it. So that's an empty threat, and he probably knows it, because I'm sure he's familiar with the Centennial case. And if the backlash is that people are going to be criminally charged and thrown into prison, well, that's already happening. We fight those cases as they come up, and they can't escalate much from there."
Maybe. Maybe not.