With support for medical marijuana nearly universal, legislators in deep red states are playing catch up.
HALEIGH COX’S EPILEPSY was a matter of life and death. Four years old, she tried dozens of medications, hoping one would quell the hundreds of seizures each day. Nothing worked–her doctors said she might not have long to live. Short on options, Haleigh turned to daily doses of cannabidiol (CBD), a new drug that has helped some patients with their epilepsy. Haleigh’s health improved drastically. She could live again. But the medicine she takes five times each day is derived from marijuana. And in states without medical marijuana statutes, CBD oil is illegal.
The Cox family moved from Forsyth, Georgia to Colorado, where this treatment was legal. They made the news in Georgia–under headlines like “The Heartbreaking Plight of ‘Marijuana Refugees.’ One state legislator was especially moved by their story. “The issue of medical marijuana was never on my radar,” Georgia State Representative Allen Peake (R-Macon) told The Politic. “That is, until I met a little girl by the name of Haleigh Cox. The more I heard her story, the more I became interested in it, and then once I met Haleigh, I asked a question: ‘what would I do if this was my child?’ That set the wheels in motion.” Peake lobbied the state legislature to legalize CBD oil in Georgia, and in April 2015, Governor Nathan Deal signed “Haleigh’s Hope Act” into law. Peake’s bill allowed Haleigh and her mother to return home to Forsyth.
Change comes slowly in the socially-conservative Deep South. But the medical marijuana effort in Georgia is not an anomaly. Every southern state save for Arkansas has followed much of the rest of the country with medical marijuana legislation, though most only permit CBD oil. This cultural and legislative shift has happened in years, not decades; every single medical marijuana bill in the Deep South has been enacted since 2014.
“Medical marijuana,” though, is a misleading term. The majority of Southern states, including Georgia, have bills that are not true “medical marijuana bills.” They do not permit medical marijuana, as twenty-six states do, but rather only CBD oil with a small amount of THC, the psychoactive component in marijuana. In an email to The Politic, Morgan Fox, Communications Director of the Marijuana Policy Project, explains that “no southern state has an effective medical marijuana program.”
Still, marijuana advocates argue this rapid shift points to a sea change in national public opinion. Polls show nearly universal public support for some type of medical marijuana reform. According to Douglas A. Berman, professor of law at Ohio State University, “CBD bills show that blanket marijuana prohibition is not really supported anywhere, even in deeply-red, Southern states.”
Alex Kreit, professor of law at Thomas Jefferson Law School, cited one specific moment as a cultural driving force: CNN medical correspondent Sanjay Gupta’s 2015 article hailing the benefits of medical marijuana for patients. The piece went viral; its widespread attention brought the issue into the national spotlight.
This shift in attitude has forced state legislatures in the Deep South–which are usually even more conservative than the populations they represent–to play catch-up. Legislators on both sides of the aisle have found success pushing CBD laws through state houses. Politicians have framed these bills as non-partisan, compassionate laws that become even more attractive when neighboring states have also passed similar measures. “Once one legislature passes a law,” said Kreit, “it becomes much less risky for another to try to do the same.” According to Berman, other parts of the country felt this geographic influence before the 2014-5 wave of legislation through the South. He points to deeply conservative Arizona, which adopted medical marijuana laws quite early, ostensibly after facing pressure from its neighbor California.
But even with strong public support, both Peake and State Senator Tom Davis of South Carolina (R-Beaufort), who advanced a very similar bill in his home state, struggled to pass their bill. “When I originally introduced the legislation [17 months ago], there was a lot of pushback and a lot of skepticism from my colleagues. Many of them told me I had short circuited my political future with the introduction of this bill,” Peake said.
Republican legislators have had good reason to fear being voted out of office for backing a medical marijuana bill. “In the 80s and 90s, there was no greater political career-killer than to be labeled as ‘soft on drugs,’” Kreit said. “In the last couple of years, that’s started to shift, but it’s still a definite fear.”
Many of Peake’s colleagues adamantly opposed any marijuana reform. “They have a fear that we’re going to become Colorado,” he said. Peake explained how opposition from faith-based groups and law enforcement– important voices for many Southern voters–had created resistance to Haleigh’s Hope Act. Both groups feared the bill was a “Trojan Horse” for recreational marijuana, the legalization of which they vehemently opposed.
“There has been a long history of demonization of marijuana,” said Berman. Fearing that medical marijuana opened a risky “gateway” to recreational marijuana, conservative politicians and groups also worried about introducing it prematurely to the market. If marijuana were to be considered a medicinal plant, they argued, it should weather the same “strict scrutiny” that other pharmaceutical drugs face from the FDA.
But Peake assured his constituents and colleagues that he would fight just as hard against marijuana’s recreational use as he has fought for its medical use. Such political maneuvering is probably a wise move, said Berman, since Southern conservatives still find the idea of recreational marijuana distasteful.
With strong support from Democrats and mixed support from Republicans, Peake’s bill passed in Georgia and–perhaps more surprisingly–helped during his next election. “People thought ‘boy, he’s going to be voted out of office’, but I won [my next election] with 88% of the vote against a formidable opponent. Folks understood that it was a well-regulated, tightly regulated bill, and they saw I was fighting for people with a suffering with a debilitating disease.”
Meanwhile, Davis decided that South Carolina needed much more expansive legislation. His next proposition, in 2015, allowed for medical marijuana licenses for the drug itself, expanded the list of conditions that could be treated with marijuana, and laid plans for the controlled cultivation of marijuana in the state. State law enforcement, particularly Mark Keel, Chief of the South Carolina Law Enforcement Division, pushed back hard. The bill lost 7-4 in a state legislature vote. Davis said Keel had dissuaded lawmakers by “presenting statistics from Colorado, [which is] not presenting apples to apples.”
But many politicians recognize that support for true medical marijuana has spread, independent of political party. “Republicans who are more libertarian-minded have a natural reason to support these marijuana laws,” said Professor Robert Mikos of Vanderbilt Law School. But other Republicans in socially conservative states still have a majority of constituents who believe that marijuana may have medicinal benefits.”
So Davis pressed on, trying to take his bill farther than Peake’s. He had trouble reaching certain South Carolinians with his message. “South Carolina is an interesting state. The Upstate area has an evangelical, socially conservative, Southern Baptist population, so they don’t like alcohol, gambling, and certainly not drugs. So Republican lawmakers from that area don’t support this bill because they reflect the mores of their constituents. But as you get to the coast, it tends to be more cosmopolitan, more diverse demographically, you don’t find people with the same concerns. So the split in South Carolina is on a regional basis, as opposed to a political party basis,” he said. But Davis has found ways to portray marijuana as a safer, more desirable alternative. “It is illogical to look at marijuana unlike any other medicine. Opiates, for example, are much more dangerous, have much more street value, have many more deaths associated with them, and cannabis, in many cases, can provide the same benefits.”
Heartfelt stories and hard data have made the case for Davis, who thinks opposition will lessen. “If a doctor and a patient decide upon a course of treatment,” he asked, “why would the state want to interfere?”
Davis’ advocacy suggests this wave of Southern legislation is a step toward marijuana legalization elsewhere. Some experts consider CBD bills restrictive to the point that they are more symbolic than operational on a wider level. Peake admits, regrettably, the narrowness of his own bill in Georgia. Mikos sensed that many lawmakers have hedged their bets when advocating for legislation; They have hesitated to stake their careers on more powerful legislation. “What some states in the South have done is they’ve taken a baby step, and have legalized very restrictive bills for CBD without actually legalizing the actual drug,” said Mikos. “And maybe they’ve done this out of a genuine belief that it will be beneficial, but it’s also a way to diffuse some of the pressure legislators are feeling from constituents. With these laws, they can go back to their constituency and say ‘We’ve looked at the issue and we passed legislation that legalizes CBD for epilepsy’ to suggest that they’re doing something.”
These laws may also been rushed through Southern state legislatures for another reason beyond reflecting shifting public opinion. “The threat of ballot initiatives is changing the whole landscape,” said Berman, who points to Florida, where the threat of a referendum forced legislators to cut their losses. “The states that have ballot initiative mechanisms have had much more success getting marijuana reform passed, both as a result of advocates doing the work to get bills passed and also because legislators would rather have control of the situation, rather than letting advocates go over their head straight to the voters.”
States are the pioneers pushing the frontiers of medical marijuana reform. But change on a federal level seems inevitable. “It’s now at a point of ‘when’ and not ‘if.’ The current conflict between federal and state laws on marijuana is just untenable,” says Kreit. “It’s bordering on delusional to think that state and federal marijuana laws are a trend that’s going to reverse itself.”
The tension between the current federal and state laws means that the Coxs must break federal law to enjoy the benefits of Haleigh’s Hope Act. Because Georgia has no state-regulated marijuana “grow” program, the Coxs must buy CBD oil illegally in another state and bring it back to Georgia, breaking laws that forbid interstate travel with marijuana products. As Peake explained, “Our legislation actually causes our citizens to become criminals to get cannabis.”
Berman speculated that by the 2020 election cycle, widespread federal reform will be a part of the national political conversation. He says the political climate is already ready at a grassroots level, but that President Barack Obama has not been vocal on the issue, and that Hillary Clinton and Donald Trump “are of a generation who are see more risk than reward in sticking their neck out about this right now.” He also noted that marijuana reform advocates do not yet see eye-to-eye on the proper recourse, both in the short and long-term, as a hindrance to a federal bill being passed in the immediate future. But Berman says that those at the end of their congressional careers are much less likely to support radical marijuana reform than their younger peers, so perhaps the next generation will bring even more reform. Kreit predicts a change in federal laws to accommodate state’s rights, thereby resolving the problems facing “marijuana refugees” like Haleigh Cox.
For Haleigh Cox, Tom Davis, and Allen Peake, the future of medical marijuana in the Deep South lies in widening its scope. Peake wants to see the law extended to cover topicals and other forms of CBD oil, and he wants to see these rights extended to individuals with more and more conditions. Davis hopes to use computer tracking chips to track marijuana “from seed to sale,” thereby preventing the illegal sale of marijuana originally grown for medical use. Both want the public to understand the value of medical marijuana for more than just the treatment of epilepsy. And they’re hopeful–for while change may come slowly in the Deep South, it comes nonetheless.