RICHMOND — Parents of epileptic children gathered in the gallery of Virginia’s law-and-order House of Delegates on Tuesday, almost afraid to look as their long-shot medical marijuana bill came up for a vote.
“I couldn’t even look at the board,” said Teresa Elder of Springfield, who considers two marijuana extracts a “last hope” for controlling seizures in her 22-year-old son, Tommy.
When she finally stole a glance at the lighted-up voting board, Elder was shocked to see only green.
The Republican-dominated chamber voted 98 to 0 for a bill intended to make it easier for Virginians with severe forms of epilepsy to use two oils derived from marijuana. Only two delegates opposed the bill, and they chose to abstain rather than to vote against it.
The overwhelming passage stunned Elder and other parents who never expected to succeed in Richmond’s highly conservative lower chamber on their first try. The vote might be seen as a turning point for Virginia, which has staunchly opposed loosening marijuana laws as neighboring Maryland and the District have eased theirs.
But legislators and activists on both sides of the marijuana issue cautioned against reading the House action as a sign that Virginia’s conservative Republican Party is warming to more liberal marijuana policies.
The bill was written and rewritten in ways that betray the legislature’s discomfort with the notion of liberalizing marijuana laws as much as its desire to help a particularly heart-rending group of patients and their families. House Republicans showed no interest in fixing the unworkable medical marijuana law it has on the books, much less signing off on recreational use, as has been done in Colorado. A Senate bill to decriminalize marijuana died in committee this session, as did a broader medical marijuana bill proposed in the House.
“It’s a very narrow bill that is tailored to a very specific medical condition,” said Bob Holsworth, a former Virginia Commonwealth University political scientist. “I think we’re far from going down the path of becoming Rocky Mountain high.”
One of the yes votes came from Del. C. Todd Gilbert (R-Shenandoah), who said the measure is “not even close to legalizing medical marijuana.”
“It is a very small, narrowly targeted step to try to alleviate the suffering of these kids that does not open a Pandora’s box with respect to the disaster that medical marijuana has represented in some states that have gone that route, specifically California,” Gilbert said.
The legislation allows the use of two marijuana-extracted oils that lack the plant’s intoxicating properties but help alleviate debilitating seizures. The bill provides a way for epileptics or their legal guardians to avoid prosecution for possession of cannabidiol oil (also known as CBD) and THC-A oil.
Similar bills have begun sweeping though legislatures — many of them in conservative states — after an August 2013 CNN documentary “Weed” that showed the plight of a family seeking the oil for their daughter’s seizures, said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws. About a dozen states have passed laws allowing use of the oils in the past 18 months, including Alabama, Utah and Mississippi.
It’s not quite the Age of Aquarius. More like “the CBD epoch,” as staff at NORML refer to the phenomenon.
“In the course of one legislative session, some of the most conservative states have embraced this notion of CBD access,” St. Pierre said. “We never could have predicted it, and we’re currently vexed by it.”
He worries that legislators are giving lip service to helping patients seeking medical marijuana by allowing limited forms to a very specific type of patient and providing no means of obtaining them.
“They’re really being dragged there kicking and screaming by their constituents,” St. Pierre said. “What we need to keep an eye out for is, brushing their hands, ‘Look, we acted on medical marijuana. We did it.’ ”
The House bill, sponsored by Del. David B. Albo (R-Fairfax), heads to the Senate, which has passed similar legislation sponsored by Sen. David W. Marsden (D-Fairfax) with just one no vote. Democratic Gov. Terry McAuliffe supports the bills, spokesman Brian Coy has said.
Those big legislative wins came after considerable work to make the bills palatable to conservatives.
The process began with heart-wrenching stories that constituents brought to Albo and Marsden. Parents of children who suffered dozens of seizures a day, who had exhausted every conventional drug or suffered debilitating side-effects from them and who saw hope in little vials of oil derived from marijuana.
One mother moved to Colorado so her daughter could obtain the oils, leaving another daughter behind in Virginia until the strain on the family proved too much and they moved back. In front of legislators, a girl had a seizure during a committee hearing on the bill.
Albo and Marsden set about writing bills that would have not only permitted the use of the oils, but also would have established a way to provide it to patients. They had considered whether compounding pharmacies or state medical schools could produce it.
Albo said they ultimately concluded that they could not ask pharmacies or universities to produce something that remains illegal under federal law. The bills, as passed, do not address how patients will obtain the oils — a flaw in the eyes of critics on the left and right, who say that will force the use of products purchased on the black market whose quality will be uncertain.
Albo started out by trying to adjust the state’s current medical marijuana statute. Virginia legalized medical marijuana in 1979 for patients with cancer and glaucoma, but that law requires “a valid prescription” — something doctors cannot legally provide as long as marijuana is federally restricted.
Albo’s original bill added epilepsy to the list and changed “valid prescription” to “recommendation.”
But the House committee taking up the bill was not willing to go that far. In the end, Albo and Marsden ended up with bills that apply only to patients with intractable epilepsy. And the bills would not legalize the oils but instead would provide an “affirmative defense” to anyone charged with possession of the oils.
Albo borrowed that approach from an issue that the conservative House holds near and dear: gun rights.
“It’s almost the exact same language as the concealed-weapons statute,” he said. “The concealed-weapons statute says, ‘You cannot conceal these weapons, but if you can show you have a valid permit, then you can’t be prosecuted for having these weapons.’ We took that same theory and said, ‘No one can have THC or CBD [oils], but if you have a written certification and you can show that to the court, the case would be dismissed.’ ”
Those changes raised the comfort level of GOP legislators wary of appearing soft on drugs, said one Republican insider, who spoke on the condition of anonymity to discuss a sensitive subject.
“We can’t be painted as, ‘Toke it up, brother,’ ” that person said.
Said Gilbert: “My knee-jerk reaction was absolutely that it was a veiled attempt to get us to medical marijuana or decriminalization. But nothing could be further from the truth.”