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In the next few days, Governor Andrew Cuomo is expected to sign a bill authorizing medical marijuana in New York State, making it appear green on colored maps of the US that track such legislation — though it probably shouldn’t.
The law, which was passed by the state legislature last Friday, is one of the nation’s most restrictive. It explicitly bans chronically-ill patients from smoking the drug, and it leaves many aspects up to a governor that took every opportunity to delay and water it down until recently, then took credit for it.
The bill’s most restrictive feature could be simply logistical: a sharp limit of 20 dispensaries in the entire state means there will be at most one every 2,700 square miles — a span that will likely be greater upstate — and only one per million New Yorkers.
“We view this as a step forward, but it’s not what we wanted, it’s not what our members wanted, it’s not what many of the patients around the state wanted,” Sean Barry, Executive Director of VOCAL-NY, an advocacy group for low income, HIV-positive New Yorkers, told VICE News.
One of those members is Wanda Hernandez, longtime Bronx resident and chairwoman of the VOCAL-NY board, who has lived with HIV since 1995. She has diligently taken her anti-retrovirals for two decades, never allowing the HIV to progress to AIDS.
However, even patients who keep their viral loads low are increasingly suffering from HIV-associated neuropathy, which can damage the nervous system, causing chronic pain and numbness. Hernandez began smoking marijuana several years ago to increase her appetite and alleviate pain and nausea.
“Medical marijuana helps me function and do the things I do as an advocate,” Hernandez told VICE News.
But she has had to rely on the discretion of a local dealer who delivers to her house, and if she wants to keep smoking, she will have to continue calling on his illegal services after the bill takes effect.
“I smoke three times a day,” she said. “It’s definitely in the back of your mind. You don’t want to feel criminalized for using something that is natural.”
Hernandez won’t even have a choice for the 18 months New York State has given itself to set up the program — which is longer than it took to construct the Empire State Building.
Earlier drafts of the law that included smoking enjoyed bipartisan support in the legislature, but Cuomo was adamant that the provision be excised. Cuomo also demanded the number of conditions eligible for medical marijuana be narrowed. Only ten “serious conditions” — including HIV/AIDS, ALS, and cancer — and a handful of broader, chronic symptoms are listed under the bill's doctor recommendation guidelines.
“The governor became very involved at the 11th hour,” said Barry. “There was already a compromise, and strong support in the Senate, but then he was sending signals that he wouldn’t sign the bill. It was almost like he needed to put his stamp on it.”
The administration has the power to expand the bill to include more medical conditions, but at a press conference held before the bill was passed, Cuomo appeared more concerned with showing that he could quash the law at any time than he was with implementing it.
“If there are unintended consequences, then we can suspend the program,” Cuomo said, describing the process as “you pull the plug out of the wall, the whole machine shuts down” — a particularly dark metaphor for killing a program aimed at helping the terminally ill.
A recent poll showed that 83 percent of New York voters support medical marijuana, with 51 percent in favor of decriminalizing personal use.
The bill allows patients to take their medicine via extracts, edible products, or by vaporization. New York Physicians for Compassionate Care, a group of doctors that support medical marijuana, sent a letter to the legislature in early June pointing to the large base of research that shows that smoking cannabis is safe and effective. Vaporizing can be expensive and, in some cases, might not provide the same palliative result as smoking.
“The cost of a vaporizing machine is going to create a barrier for poorer New Yorkers,” said Barry. Because cannabis is not approved by the FDA, insurers don’t cover costs.
Since the logic behind banning smoking was in part to prevent the spectacle of dispensaries with plants, it’s unclear if patients will even be allowed to vaporize whole plant material. Extracts and concentrates might have the paradoxical effect of increasing THC potency while eliminating therapeutically-relevant compounds.
“This is certainly an intrusion into the patient-doctor relationship,” Gabriel Sayegh, New York director of the Drug Policy Alliance, told VICE News. “It restricts the ability of doctors to make decisions based on their expertise.”
The law’s limits on who can recommend marijuana — only physicians and possibly certain nurse practitioners, at the state’s discretion and approval — has also raised concerns that patients in rural areas with a shortage of doctors could face an uphill battle getting treatment.
On Monday, Cuomo signed a bill expanding the availability of naloxone, an opioid-overdose antidote in increased demand due to an epidemic of heroin and prescription painkiller abuse. In New York, opioid painkillers like OxyContin can be prescribed by nurse practitioners and doctor’s assistants— the same professionals who haven’t been authorized to recommend marijuana.
Veterans returning from wars in Iraq and Afghanistan with PTSD and other chronic ailments have been particularly vulnerable to opiate addiction, and they would stand to gain much from the legal availability of alternative treatments like marijuana.
But the New York bill does not yet include PTSD — or muscular dystrophy and rheumatoid arthritis, for that matter — as approved conditions. A recent study has shown significant improvement among PTSD sufferers using medical marijuana.
It doesn’t augur well for decriminalization if, even after medical marijuana legislation, a veteran with PTSD can’t legally smoke pot.
New York’s bill is even more restrictive than neighboring New Jersey’s 2010 medical marijuana law, whose implementation has offered a stark illustration of how an unfriendly executive can throw a wrench into even the best-laid plans. Governor Chris Christie, who took office after the law was passed, has refused to authorize different elements like access to medical marijuana from out-of-state, a move that would expedite treatment of the severely ill.
Because of strict hurdles and formalities, the program has thus far enrolled fewer than 3,000 people, which Christie takes as evidence that there is little demand for medical marijuana.
“When we run a medically-based program, you don't see the demand,” he told a radio station last week. “This program and all these other programs, in my mind, are a front for legalization.”
New York’s bill is a reminder that, despite the headlines, drug reform is glacial in the US. Widely considered a progressive state, New York only rolled back its draconian Rockefeller drug laws in 2009. Even the bill’s spelling of the drug — marihuana— dates back to the days when cannabis was first introduced into the penal code in 1937, a time when it was still referred to as “Mexican weed.”
It’s hard to estimate how many New Yorkers could make use of the program, but they number in the tens of thousands. They are dwarfed, however, by the roughly 400,000 New York City residents who have been arrested over the past ten years for marijuana possession.
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