Pubdate: Tue, 15 May 2001
Source: New York Times (NY)
Copyright: 2001 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Linda Greenhouse
Cited: Oakland Cannabis Buyers' Co-op http://www.rxcbc.org/
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/ocbc.htm (Oakland Cannabis Buyers Cooperative)

JUSTICES BAR MEDICAL DEFENSE FOR DISTRIBUTION OF MARIJUANA

WASHINGTON, May 14 — The Supreme Court ruled today that federal law does 
not allow a "medical necessity" exception to the prohibition on the 
distribution of marijuana. The 8- to-0 decision dealt a setback, but not a 
definitive blow, to a movement that has passed medical marijuana ballot 
initiatives in eight states.

The ruling did not overturn the state initiatives or address any question 
of state law. Rather, the court ruled that marijuana's listing by Congress 
as a Schedule I drug under the Controlled Substances Act meant that it "has 
no currently accepted medical use in treatment in the United States."

The court said in an opinion by Justice Clarence Thomas that the federal 
appeals court in San Francisco misread federal law when it ruled last year 
that an Oakland marijuana cooperative could raise a medical-necessity 
defense against the federal government's effort to shut down the 
pharmacylike cooperative.

The cooperative distributes marijuana to patients whose doctors say they 
need it to ease the symptoms of cancer, AIDS and other illnesses.

The Justice Department brought the case as a request for an injunction 
rather than as a criminal prosecution, which would have required a jury 
trial. Since nearly three-quarters of Oakland's voters supported 
California's Proposition 215, the 1996 initiative that enacted the 
Compassionate Use Act to permit the medical use of marijuana, the 
government would have faced — and, indeed, still faces — a daunting 
challenge in finding a jury willing to convict someone for making marijuana 
available for that purpose.

The Oakland Cannabis Buyers' Cooperative was set up with the blessing of 
the city government and the police department.

The question before the Supreme Court today was a relatively narrow one: 
not the validity of the California initiative itself but of the federal 
courts' response to the government's request for an injunction. The United 
States Court of Appeals for the Ninth Circuit ordered the trial judge, 
Charles Breyer of Federal District Court, to tailor an injunction that 
would permit those with a serious medical condition that could be 
alleviated only by marijuana to have continued access to the drug.

The Clinton administration, asserting that the Ninth Circuit had committed 
a serious error that threatened to undermine federal drug laws, persuaded 
the Supreme Court to grant a stay of Judge Breyer's ruling last August. 
Justice Stephen G. Breyer did not participate in any phase of the case 
because Judge Breyer, who sits in San Francisco, is his younger brother.

Given the narrowness of the question before the court, the decision today 
left a number of questions unanswered. Among these were the availability of 
a medical necessity defense to individual patients who grow or possess 
marijuana for their own use, as opposed to a mass distributor like the 
Oakland cooperative, as well as whether state governments could carry out 
their medical marijuana initiatives by going directly into the distribution 
business. Two states, Nevada and Maine, are considering such a system.

Alaska, Arizona, Colorado, Oregon and Washington, in addition to 
California, Nevada and Maine, have also passed medical marijuana 
initiatives in the last few years. Advocates for medical marijuana said 
today that this campaign would continue, with many noting that nearly all 
marijuana prosecutions are handled at the state rather than federal level.

Last month, a jury in state court in Sonoma County, Calif., acquitted a man 
who offered a medical-necessity defense to a charge of cultivating 850 
marijuana plants.

Advocates of the medical use of marijuana say the drug is effective in 
combatting the nausea of chemotherapy and the wasting syndrome of AIDS. The 
California Medical Association, which supports the therapeutic use of 
marijuana under a doctor's direction, said today it was "very disappointed" 
in the ruling because of the organization's "core belief that patients 
should not suffer unnecessarily when other options fail."

There is a debate over whether a legal drug called Marinol, a synthetic 
version of the active ingredient in marijuana, offers the relief that some 
patients find in marijuana.

Kevin Zeese, president of Common Sense for Drug Policy, an advocacy group 
here, predicted that the decision would "heighten the conflict in both 
legal and political terms" and could make it difficult for prosecutors to 
win a conviction in any marijuana case. Mr. Zeese said the distribution 
clubs were working on such new strategies as maintaining a "grow room" 
where patients would own their own marijuana plants, thus avoiding the 
potential legal pitfall of distribution.

Justice Thomas's opinion, United States v. Oakland Cannabis Buyers' 
Cooperative, No. 00-151, contained some broad language suggesting that its 
analysis meant there could be no acceptable medical use of marijuana in any 
setting, not only in the context of distribution by large organizations. 
For that reason, Justices John Paul Stevens, David H. Souter and Ruth Bader 
Ginsburg refused to sign his opinion, writing in a separate concurring 
opinion that large-scale distribution was the only issue the case presented 
and on which the court would validly rule.

"Most notably, whether the defense might be available to a seriously ill 
patient for whom there is no alternative means of avoiding starvation or 
extraordinary suffering is a difficult issue that is not presented here," 
Justice Stevens wrote in an opinion that the other two justices joined.

California filed a brief in support of the Oakland cooperative, asserting 
that the federal law "unduly intrudes into California's traditional right 
to regulate for the health and welfare of their citizens."

Justice Stevens said Justice Thomas's opinion showed inadequate "respect 
for the sovereign states that comprise our federal union." This provoked a 
response from Justice Thomas, who said: "Because federal courts interpret, 
rather than author, the federal criminal code, we are not at liberty to 
rewrite it."

When he was governor of Texas, President Bush said that he was personally 
opposed to legalizing marijuana for medical use but that states should have 
the right to decide for themselves. "I believe each state can choose that 
decision as they so choose," he said in October 1999, according to an 
article in The Dallas Morning News that Justice Stevens cited in his 
opinion today.
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MAP posted-by: GD