THE STRAIGHT AND NARROW

Arguing For The "Medical Necessity" Of Marijuana Use, Proponents Pursued A
Sober, Conservative Strategy

Gerald Uelmen was about to argue on behalf of the medical marijuana
movement before the U.S. Supreme Court on March 28. But first, he had a
family matter to attend to. Uelmen, a professor and former dean at Santa
Clara University School of Law, moved the admission of his wife Martha and
daughter Amelia into the Supreme Court bar. Using the standard language of
such motions, Uelmen told the Court he was "satisfied that each possesses
the necessary qualifications." "You'd better be," replied Chief Justice
William Rehnquist in a stage whisper, responding to laughter from the court.

The image of the henpecked husband/father is always good for a laugh, even
in a supposedly postsexist world.

Rehnquist granted the motions, and soon Uelmen began on the case at hand.
When it was all over Uelmen joked, "Two out of three is not bad." His wife
and daughter were accepted by the Court, he was saying, but almost
certainly it would reject his arguments on behalf of the severely ill
cancer and AIDS sufferers who benefit from medical marijuana. His arguments
in United States v. Oakland Cannabis Buyers' Cooperative fell largely on
deaf ears, and some seemingly unfeeling hearts.

The future of the medical marijuana movement could be on the line in the
case. But the actual issue before the Court is whether federal courts, as
part of their equitable powers, could consider "medical necessity" when
they weighed the government's request for an injunction to stop the
operation of cannabis clubs in California. The clubs opened after
California voters passed Proposition 215 in 1996, and the government
attacked the clubs by seeking injunctions rather than criminal prosecutions
a strategy that critics say was designed by the government to keep juries
from deciding whether medical use of marijuana should be legal. But the
government wants the whole loaf: injunctions that are jury-free but also in
a sense judge-free. Because marijuana is barred under the Controlled
Substances Act, the government thinks that judges, when they enjoin the
cannabis clubs, should not be free to exercise their usual discretion to
allow exceptions. At one point, as Uelmen was rattling off the kinds of
imminent harm that would justify a medical necessity exception "death,
starvation, blindness" Justice Antonin Scalia interjected with sarcasm,
"Stomach ache?" "No," said Uelmen forcefully. "We're talking about patients
who are going to lose their sight, who are going to forgo chemotherapy or
radiation because they can't live with severe nausea." Justice John Paul
Stevens, one of three cancer survivors on the Court (prostate cancer,
1992), zeroed in on the government's not-so-subtle suggestion that the
medical marijuana movement is a front for those who want to make marijuana
distribution legal in general.

Perhaps playing devil's advocate, Stevens asked about footnote 11 of the
government's brief, which quoted from undercover federal agents who visited
the Oakland cannabis club and described it as a marijuana supermarket with
loose rules for determining who could buy. That footnote, said Stevens,
"gives the impression that this whole case is a sham, that it's really just
a front for using marijuana." He asked Acting Solicitor General Barbara
Underwood whether the Court should assume there is no one for whom
marijuana use is a medical necessity. Underwood said the Court should take
the case "on the assumption that there are no such people." The government
agencies that have looked at the question, she insisted, "have found there
is no accepted medical use" of marijuana. The arguments seemed to be acted
out on a stage far removed from the patients whose lives and eyesight have
been saved by marijuana use people like Robert Bonardi, whose story, along
with many others, was included in the briefs submitted to the Court. "I
would retch whenever I thought about food or whenever anyone tried to put
food in front of me," said Bonardi, who was battling cancer of the larynx.
"The nausea made me particularly afraid to eat because my throat condition
makes it especially unpleasant if I vomit." When his daughter gave him a
cannabis brownie, Bonardi said, "For the first time in several weeks, I
felt like eating.

The brownie caused my nausea to go away. I asked my wife to cook me eggs
and sausage.

She was so happy because it had been so long since I had asked for food."
In the brief Uelmen asked, "If Mr. Bonardi were our own father or brother,
which of us would hesitate for a moment before supplying him with cannabis?

Would any civilized society punish Mr. Bonardi or his daughter?" But the
only real talk of such suffering during oral arguments came from Justice
Ruth Bader Ginsburg (colon cancer, 1999) who responded to Underwood's bald
statement that "some of the claims of medical use are simply wrong."
Ginsburg said, "General Underwood, may I just stop you there." She cited
"one of the examples that was in the brief, the one who was constantly
vomiting and the only thing that calmed him down" was marijuana. Uelmen
himself offered little of the compassionate rhetoric.

And he made no mention at all of federalism, which should have appealed to
a conservative majority that worries when the federal government thwarts
the will of state voters. The state of California, in its brief supporting
the cannabis club, makes that argument forcefully, but it was nowhere to be
found at oral argument. Before the argument began, lawyers for the
pro-marijuana groups were split over how broad Uelmen's plea should be.
Some wanted him to stress the will of California voters; others wanted him
to tell the dramatic stories of the terminally ill; others advocated due
process, even commerce clause arguments. In the end, Uelmen stuck to his
knitting and argued about the standards for civil injunctions. He defended
the narrowly defined medical necessity exception that trial judge Charles
Breyer grafted onto his injunction against the cannabis clubs at the
request of the Ninth Circuit, allowing sales of marijuana to those who have
no alternative and would suffer "imminent harm" if they didn't receive it.
And several justices seemed sympathetic to his suggestion that the
government sought injunctions as a way of avoiding juries. "Isn't the real
concern behind this that with the passage of the California proposition and
the popularity within the California population that that necessarily
entails, it will be very, very difficult for the government ever to get a
criminal conviction in a jury trial?" Justice David Souter asked.

Scalia disputed the premise that "California juries only enforce those
criminal laws they like," but the point was made. Underwood asserted that a
defendant who violates an injunction is also entitled to a jury trial, but
Ginsburg quickly noted that in a civil context, the standard for a finding
of guilt would not be "beyond a reasonable doubt," but rather an easier
"clear and convincing" standard. Still, Justice Anthony Kennedy seemed
unsympathetic, asserting that the existence of cannabis clubs amounts to "a
huge rewriting of the statute," referring to the Controlled Substances Act.
Justice Sandra Day O'Connor (breast cancer, 1988) suggested the Ninth
Circuit "erred at the point that it created this blanket defense." After
the argument, pro-marijuana lawyers agreed that Uelmen's narrow-gauge
arguments were the best strategy even if a victory would only help the
patients most severely in need of marijuana.

And victory is more possible than it might otherwise seem. Because Justice
Stephen Breyer older brother of the trial judge who ruled in the case
recused himself, Uelmen only needs four justices instead of the usual five
to uphold the Ninth Circuit decision. "It was the only way to go," said
Kevin Zeese, president of Common Sense for Drug Policy. Referring to the
Court's decision in Bush v. Gore, Zeese added that it would not have made
sense for Uelmen to argue that legalizing medical marijuana is the desire
of the people in California. "This court doesn't have much respect for
democracy, anyway."