MEDICINE AND MARIJUANA

Is medical necessity a defense for use of marijuana? That was the central
question weighed by eight U.S. Supreme Court justices last week as they
heard United States v. Oakland (Calif.) Cannabis Buyers' Cooperative.

We believe patients who say marijuana provides some measure of relief for
them against medical conditions and diseases such as cancer, AIDS and
chronic pain. There should be some reasonable way to provide the drug.

Several states, such as California, have passed laws allowing the medicinal
use of marijuana. Ohio, unfortunately, has not shown that same level of
enlightenment.

Federal law holds that marijuana is illegal. California's Proposition 215
allows marijuana use for certain purposes, but the proposition, while
approved by voters in 1996, is not truly in effect.

The justices were not directing their questions to California law; rather,
they were focused on whether a 1970 federal law classifying marijuana as an
illegal substance with no known medical value could be obviated by patient
need.

The case grew out of a 1998 civil injunction requested by the federal
government, under federal law, preventing the Oakland cooperative and other
Northern California medical cannabis clubs formed after California voters
passed Prop. 215, from distributing marijuana or cannabis to patients who
qualify to use it under California state law. U.S. District Court Judge
Charles Breyer granted the injunction.

The Oakland cooperative, which had been designated by the Oakland's city
government as the city's medical marijuana verification and distribution
system, stayed in existence and appealed the decision, arguing that a
"medical necessity" defense for its activities should have been allowed.
The 9th Circuit federal appeals court reversed the decision and sent it
back, ordering the district court to take medical necessity as a "legally
cognizable defense" into account. Breyer amended the injunction so it
didn't apply to patients who met a strict four-part medical necessity test
(about 14 of 4,500 active members). The government asked the U.S. Supreme
Court to stay the amended order and take the case itself, which it did.

Most of the justices' questions Wednesday revolved around relatively narrow
issues. Was the federal Controlled Substances Act of 1970 written so as to
set up a system that precludes the possibility of a medical necessity
defense? Was the government's decision to file a civil case rather than
bringing a criminal action a tactic designed to prevent the case going
before a jury, and reduce the government's burden of proof? How much
"equitable discretion" does a federal district judge have to fashion an
injunction that takes public and individual interests into account?

Justice John Paul Stevens, the only justice to vote against staying the
district court's injunction, asked questions that forced the government
(represented by Acting Solicitor General Barbara Underwood) to acknowledge
that it was requesting the court to rule that no medical necessity defense
is possible under federal law. Several justices seemed disturbed by this
contention, and Justice Antonin Scalia sought to refine the argument.

Toward the end, Gerald Uelmen, representing the cannabis cooperative, was
able to argue that a medical necessity defense is already established under
federal law by several lower-court decisions in the 1970s.

Robert Raich, an attorney for the Oakland cooperative, said there could be
three possible outcomes. The court could rule that the 9th Circuit decided
the case correctly and that a medical necessity defense under federal law
can be asserted not only by patients but by organizations or support groups
acting on their behalf. Such a ruling could apply nationwide, including
Ohio, and not just in the eight states that have made provision under state
law for physician-approved medical use of cannabis.

The court could go the other way, ruling that no medical necessity defense
is possible under federal law. Patients in states like California would
then be protected against prosecution by state authorities, but could be
subject to federal prosecution.

There is also the possibility of a tie. Justice Stephen P. Breyer, whose
brother is District Court Judge Charles Breyer, recused himself, so only
eight justices heard this case. If there is a tie the 9th Circuit ruling
that medical necessity is a legally cognizable defense in federal cannabis
possession cases would stand, but only in the 9th Circuit, which includes
most of the western states. Ohio is in the 6th Circuit.

However the Supreme Court decides, the struggle to get government at all
levels to allow physicians and patients rather than legislators and
bureaucrats to decide what medicines and treatments are appropriate will
continue. A ruling is expected by the end of June.