Pubdate: Thu, 17 May 2001 Source: Chicago Tribune (IL) Copyright: 2001 Chicago Tribune Company Contact: http://www.chicagotribune.com/ Details: http://www.mapinc.org/media/82 Author: Steven Lubet Bookmark: http://www.mapinc.org/ocbc.htm Oakland Cannabis Court Case) Note: Steven Lubet's most recent book is "Nothing But the Truth: Why Trial Lawyers Don't, Can't, and..." FIRST MEDICAL MARIJUANA, NEXT ABORTION RIGHTS You might not think that there is a connection between "medical marijuana" and abortion rights, but the law works in complex ways. And it turns out that a recent decision by the U.S. Supreme Court, though seemingly limited to the question of controlled substances, just might initiate the next assault on the right to choice. In United States vs. Oakland Cannabis Buyers Cooperative, the Supreme Court held that federal law does not permit the distribution of medical marijuana, even to alleviate the suffering of cancer victims and AIDS patients. But marijuana is not exactly a popular cause, and that's too bad, because the implications of the court's decision go well beyond the narrow question of medical marijuana. In fact, the majority's reasoning may well have a direct impact on the future of abortion law in the United States. The precise question in the case was whether the federal courts could recognize a "medical necessity" exception to the Controlled Substances Act. Without such an exception, the distribution of marijuana is always illegal under federal law, even in the eight states (Alaska, Arizona, California, Colorado, Maine, Nevada, Oregon and Washington) that have passed medical marijuana initiatives. The court's five conservative justices held, in an opinion written by Justice Clarence Thomas, that no such exception is possible even in the case of desperately suffering cancer victims, because an act of Congress has conclusively determined that "marijuana has no currently accepted medical use at all." That congressional determination is flatly contradicted by leading scientific authorities, including the California Medical Association and the National Institute of Medicine. But according to Justice Thomas, Congress may make binding medical judgments, not subject to review by the courts, no matter what patients need and no matter what doctors say. Now let's shift the discussion from marijuana to abortion. Imagine that Congress passed a statute, let's call it the Controlled Procedures Act, criminalizing some abortions by declaring that "late-term abortion has no currently accepted medical use at all." Following Justice Thomas's reasoning in the Cannabis Buyers case, the courts would be helpless to intervene. If Congress can ignore the weight of medical opinion concerning marijuana, why can't it make an equally authoritative resolution concerning abortion? The prospect for abortion rights become especially chilling when we recall that Roe vs. Wade itself was premised on the right to privacy, meaning that the government may not interfere in medical decisions made between a woman and her physician. But now the Supreme Court seems to be saying that Congress may enact blanket legislation that outlaws certain necessary treatments, with no exceptions whatsoever. Here is the most important language from the Cannabis Buyers case: "It is clear from the text of the Act that Congress has made a determination that marijuana has no medical benefits," and therefore the Supreme Court is "unable in any event to override a legislative determination manifest in a statute." In the hands of a determined activist, that becomes a virtual road map for eviscerating Roe vs. Wade. There are differences, of course, between abortion and the limited legalization of marijuana. But it is surely only a matter of time before an anti-choice congressman introduces a bill that is directly modeled on Justice Thomas' opinion. Late-term abortion, the proposed law will say, has no medical benefits in the opinion of Congress, and the Supreme Court is therefore "unable to override" such a statute. When it comes to the Constitution, its supporters will argue that the treatment of unwanted pregnancy should have no greater protection than treatment for unwanted pain. Late-term abortion legislation has been passed by Congress in the past, only to be vetoed by President Clinton. The certainty of that veto kept the issue of abortion restriction pretty much below the public radar screen. Now things have changed. George W. Bush is in the White House and Justice Thomas has neatly explained just how a statute needs to be worded in order to bypass Roe vs. Wade and gain approval by the Supreme Court. In other words, get ready for war. - --- MAP posted-by: Josh Sutcliffe