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.
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