SUPREME COURT DEALT BLOW WITH MEDICAL MARIJUANA RULING

On May 14, the United States Supreme Court dealt a blow to organizations
that grow or distribute medical marijuana to sick people, holding that
such organizations may not raise a medical necessity defense to charges
of violating the federal prohibition on marijuana.

According to the Court, by placing marijuana in Schedule 1 of the
Controlled Substances Act -- the Schedule that is the most restrictive
possible --: Congress determined that marijuana has "no currently
accepted medical use." The only exception to the strict prohibition on
growing or distributing marijuana, said the Court, is for
government-approved research projects.

Writing for the majority, Justice Thomas stated that by expressly
determining that marijuana has no accepted medical use, Congress
foreclosed a medical necessity defense by an organization that grows or
distributes marijuana to sick people:

"It is clear from the text of the [Controlled Substances] Act that
Congress has made a determination that marijuana has no medical benefits
worthy of an exception. The statute expressly contemplates that many
drugs 'have a useful and legitimate medical purpose and are necessary to
maintain the health and general welfare of the American people,' but it
includes no exception at all for any medical use of marijuana. Unwilling
to view this omission as an accident, and unable in any event to
override a legislative determination manifest in a statute, we reject
the [Oakland Cannabis Buyer's] Cooperative [medical necessity]
argument." (Opinion, page 9.)

The Oakland Cannabis Buyer's Club raised several constitutional issues,
arguing that the Controlled Substance Act exceeded Congress' Commerce
Clause powers, violated the substantive due process rights of patients
and offends the fundamental liberties of the people under the Fifth,
Ninth and Tenth Amendments. The Court, however, refused to consider
these important issues because they were not previously addressed by the
Court of Appeals.

The most disturbing aspect of the Supreme Court's decision is the
suggestion that a medical-necessity defense might not even be available
to patients. This suggestion (which in legal terminology is called
"dicta" -- meaning superfluous statements that go beyond the facts
before the court, and are not binding in future cases) prompted Justices
Stevens, Souter and Ginsburg to file a concurring opinion rather than
join the majority opinion. While the concurring justices agreed that the
majority was "surely correct" in holding that a medical-necessity
defense is not available to third parties that grow or distribute
medical marijuana to sick people, the concurring justices emphasized
that the majority was reaching beyond the facts of the case by
suggesting that the defense of necessity is unavailable even to sick
people who grow or possess their own medical marijuana. Writing for the
concurring justices, Justice Stevens cautioned:

"Because necessity was raised in this case as a defense to distribution,
the Court need not venture an opinion on whether the defense is
available to anyone other than distributors. 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." (Stevens, J.,
concurring, pages 2-3.)

The majority's dicta is indeed troubling. It indicates that, in the
abstract, at least five of the Court's current justices would likely
reject a medical-necessity defense raised by a sick person who was using
marijuana with his or her doctor's approval. Given that the U.S. Supreme
Court is supposed to be our country's highest repository for justice,
the decision is a clear indication that in the War on (Some) Drugs there
are no limits -- even the sick will be sacrificed on the battlefield.

The Supreme Court had the opportunity in this case -- the one and only
marijuana case to ever be heard in the Supreme Court -- to draw some
important lines, to set some boundaries on the insanity that makes
otherwise law-abiding citizens criminals for smoking a plant that their
doctors tell them may help reduce their suffering or aid their healing.
Instead, by completely deferring to Congress' 1970 determination that
marijuana has no medical use, the Court endorsed the continuation of a
government policy that flies in the face of scientific facts and basic
notions of justice.

Perhaps the best thing that can be said about the Court's decision is
that it is limited to federal cases brought under the Controlled
Substances Act. It does not overturn state laws that allow seriously ill
people to possess and grow their own medical marijuana. (Such laws now
exist in nine states: Alaska, Arizona, California, Colorado, Hawaii,
Nevada, Maine, Oregon and Washington.) Since well over 90 percent of
marijuana arrests occur at the state level, state medical-marijuana laws
can continue to provide medical users with important statutory
protection from criminal prosecution.

Richard Glen Boire, Esq., executive director
Center for Cognitive Liberty & Ethics
( http://www. cognitiveliberty.org )