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.