Pubdate: Mon, 19 Mar 2001 Source: MSNBC (US Web) Copyright: 2001 MSNBC Contact: 30 Rockefeller Plaza, New York, NY 10112 Feedback: http://bbs.msnbc.com/bbs/msnbc-oped/ Website: http://msnbc.com/news/ Forum: http://www.msnbc.com/bbs/ NOTE: Legal Documents from United States of America V. Oakland Cannabis Buyers' Cooperative and Jeffrey Jones are at http://www.druglibrary.org/ocbc/ Cited: Oakland Cannabis Buyers' Co-op http://www.rxcbc.org/ Department of Justice http://www.usdoj.gov/ Family Research Council http://www.frc.org/ California Medical Association http://www.cmanet.org/ Referenced: NEJM Editorial: 'Federal Foolishness and Marijuana' http://www.mapinc.org/drugnews/v97/n000/a014.html Bookmarks: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal) http://www.mapinc.org/ocbc.htm (Oakland Cannabis Buyers Cooperative) FEDS AND STATE-APPROVED MEDICAL MARIJUANA U.S. vs. Oakland Cannabis Buyers' Co-op U.S. Supreme Court Case #: 00-151 Argument date: Wednesday, March 28, 2001 CASE: U.S. vs. Oakland Cannabis Buyers' Cooperative and Jeffrey Jones ISSUE: Does the federal law against selling and possessing marijuana trump recently enacted state laws that allow the use of marijuana when it's deemed medically necessary? BACKGROUND: American public attitudes toward marijuana took a new direction in November 1996, when California voters approved, with 56 percent of the vote, a change in state law to legalize the use of marijuana for medical treatment. Since then, eight other states -- Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington -- have adopted similar laws. While none of the new state laws legalize marijuana outright or change the criminal penalties for possessing, growing, or selling marijuana for recreational use, they do provide an exemption from criminal penalties for seriously ill patents who can demonstrate a medical need for it. Under the California law, a doctor must determine that "the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." Even so, the advocates of the laws face a sobering obstacle. Federal law continues to ban the use of marijuana for any purpose. More than a year after the California law was adopted by initiative, the Justice Department took legal action to close down six Northern California "cannabis clubs." The one involved in this case, the Oakland Cannabis Buyer's Cooperative, operated downtown in cooperation with the city government and the police department. A federal judge, Charles Breyer -- the brother of U.S. Supreme Court Justice Stephen Breyer -- ruled that under the Constitution's Supremacy Clause, federal law supersedes state law when the two conflict. While saying he was expressing no view on the legality of California's medical marijuana law, the judge nonetheless ruled that the federal government was well within its rights to shut the cannabis clubs down. The judge rejected arguments from some patients that they faced a choice of evils: they could either obey federal law that denied them relief from debilitating pain, loss of sight, or serious illness, or they could use marijuana and thereby violate federal law. But a federal appeals court saw the case differently. In September of 1999, a three judge panel of the 9th Circuit Court of Appeals said Judge Breyer failed to consider "the strong public interest in the availability of a doctor-prescribed treatment that would help ameliorate the condition and relieve the pain and suffering of a large group of persons with serious or fatal illnesses." The panel sent the case back for the judge to revise his order. And in July 2000, Judge Breyer did just that. The cannabis clubs were still legally barred from growing, selling, or possessing marijuana. But he said his order would not apply to club members who suffer from serious medical conditions, need marijuana to treat their conditions, and have no reasonable legal alternatives that would afford the same degree of relief as marijuana. The Justice Department now appeals to the US Supreme Court, which has stopped any sale of marijuana by the cannabis clubs, for any reason, until it rules on the case. Justice Stephen Breyer has decided not to participate. ARGUMENT: THE U.S. GOVERNMENT Department of Justice By passing the federal Controlled Substances Act, Congress imposed a system for determining the safety and effectiveness of drugs. Under that scheme, marijuana has been found to be a substance with high potential for abuse but with no currently accepted medical use for treatment in the U.S. No court, therefore, can exempt certain people from the federal law simply on the view of judges that marijuana has some medical utility. Congress recently renewed its earlier findings about marijuana, declaring in 1988 legislation that it continues to "oppose efforts to circumvent this process by legalizing marijuana without valid scientific evidence and without the approval of the Food and Drug Administration." Congress has expressly rejected the idea that an individual who claims a medical necessity for marijuana is exempted from the provisions of the law. Federal lawmakers have furthermore declined to leave the determination of any drug's safety and utility to individual courts, much less to private organizations like the Oakland Cannabis Buyers' Cooperative. What's more, the 9th Circuit's ruling threatens to undermine the enforcement of federal drug laws, opening the door for producers, distributors, and users of other drugs not approved by the FDA to invoke medical necessity as a defense to the enforcement of the nation's health and safety laws. The appeals court ruling cannot be reconciled with a key U.S. Supreme Court case. In 1979, the court held (in U.S. vs. Rutherford, 442 U.S. 544) that a claim of medical need cannot override Congress's judgment that a drug should be distributed only with a finding by FDA that it's safe and effective. The case involved a class of terminally ill cancer patients who sued to stop the government from interfering with sales of Laetrile, a drug that the FDA had not approved. The Supreme Court ruled that the federal drug laws make no special provision for drugs used to treat terminally ill patients. While there is a common law defense of necessity, which permits a court to acquit a defendant of a criminal offense based on a finding that the defendant acted to prevent an evil that is greater than the one intended to be avoided by a law, that defense is not available if the law itself reflects the legislature's resolution of the conflicting values at stake. Here, Congress has specifically declined to permit an exception from the laws for medical uses of marijuana. FOR THE OAKLAND CANNABIS COOPERATIVE AND JEFFREY JONES Annette Carnegie, San Francisco; James Broshahan, Robert Raich, Oakland; Gerald Uelmen, Santa Clara University Law School; Randy Barnett, Boston University Law School While the Justice Department uses heated rhetoric to argue that the appeals court ruling in this case would significantly impair its ability to enforce the law against drug traffickers who act under the guise of medical necessity, the government failed to present any evidence of any potential threat. And the trial judge has declared those fears to be "exaggerated and without evidentiary support." The citizens of the states that have passed these measures, and the thousands of doctors who have concluded that scientific evidence supports the notion that marijuana has legitimate therapeutic value, are not drug traffickers or renegades. Even the New England Journal of Medicine has said that "a federal policy that prohibits physicians from alleviating suffering by prescribing marijuana for seriously ill patients is misguided, heavy handed, and inhumane." (New Eng. J. of Medicine, Jan. 30, 1977, p 366). The limited exception to federal drug laws crafted by the trial judge in this case would allow a small group of patients who need medical cannabis to avert imminent harm such a death, starvation, or blindness. The federal law does not foreclose the defense of medical necessity. In placing marijuana on the list of controlled substances, Congress did not find that it had no medical use or that it could never serve any legitimate medical purpose. Furthermore, interpreting federal drug laws as foreclosing a defense of medical necessity would run afoul of the Constitution in two ways. First, Congress does not have the power to regulate commerce within a state. And second, adopting the government's position would deprive patients of their fundamental liberty to have access to drugs they need. FRIEND OF COURT BRIEFS FOR THE UNITED STATES Family Research Council, Washington, D.C., Janet LaRue The harm of a medical necessity exemption for marijuana will outweigh any benefits. The active ingredient in marijuana, THC, is available in a pill called Marinol or as a suppository. Crude marijuana, by contrast, is had medicine with such a variable mixture of compounds that its effect cannot be precisely defined. Marijuana itself harms the brain, heart, and lungs, limits learning and memory and clouds judgment. Permitting "medicalization" of crude marijuana would change public attitudes, especially the attitude of children, toward the perceived dangerousness of of illicit drug use. And it would make marijuana much more available for illegal use. FOR THE CANNABIS BUYERS COOPERATIVE California Medical Association and the National Pain Foundation, Catherine Hanson, Alice Mead, CMA, San Francisco These groups would not support any undermining of federal drug laws. However, in passing general laws to protect public health and safety, Congress cannot have intended to prevent the courts from accommodating the desperate needs of individual patients. Doctors and their patients must be free to explore all possible avenues of medical treatment when standard therapies fail, and no governmental body should punish that effort. - --- MAP posted-by: Richard Lake