THE ROLE OF CANNABIS

Snuffing Out Medical Marijuana High Court Ignores Suffering

By ruling against doobies as legal pain relievers, the U.S. Supreme Court
lit up debate over its no-exceptions interpretation of the federal
Controlled Substance Act

In a defining moment during oral arguments in the Oakland cannabis case
before the U.S. Supreme Court in March, Justice David Souter leaned forward
and addressed the first question to Acting Solicitor General Barbara Underwood.

He asked the government's lawyer, "Do you think we should take the case on
the assumption that there really are some people for whom this is a medical
necessity, or should we assume there are no such people?"

Underwood calmly replied: "On the assumption there are no such people."

As co-counsel for the Oakland cannabis club, I felt annoyed. The government
was arrogantly asserting that the patients whose agony was described in our
briefs did not even exist: We should just ignore them.

Still, I felt a sense of hope. After all the years of struggle against
government intransigence, we were finally in a setting where rational
argument and evidence could take one further than media spins and power
plays. We were in the United States Supreme Court.

Our strongest argument was that the federal Controlled Substances Act
should be construed to allow a medical necessity exception, because that is
precisely how the federal government itself construed it from 1978 to 1992.

During that time, it supplied 78 patients with cannabis cigarettes for two
reasons, as officials explained to Congress in 1980 hearings: because
cannabis provided therapeutic relief from the suffering these patients were
experiencing, and because government officials felt "compassion."

They even called their program the Compassionate I.N.D. (Investigative New
Drug) Program. There was no pretense that this was a research program. The
results were never studied, and approval of cannabis as a new drug was
never contemplated.

Shutting down this program was one of the most cynical and callous moments
in the history of America's drug war. After a flood of applications from
AIDS sufferers, the first Bush administration announced the program was
"sending the wrong message." The message the administration preferred was
"Just Say No."

Saying no to the sick and suffering shut off the safety valve, creating the
pressure that in California ultimately produced Proposition 215 and the
cannabis clubs.

In their Supreme Court brief, government lawyers argued that only the
government can run compassionate use programs. If the government chooses
not to, the patients just have to go without.

When the Supreme Court's opinion came down on Monday, I was disappointed,
but I expected to see a reasoned rejection of our arguments. What I
encountered instead was the same flaunting of federal authority. There was
no acknowledgment that the government's Compassionate I.N.D. Program ever
existed.

There was no attempt to explain why the Controlled Substances Act allowed
it but would not allow Oakland to do the same. Those 78 patients simply
never existed.

It was not enough for Justice Clarence Thomas to say "no" to the Oakland
Cannabis Buyers' Cooperative. He wanted to say "no" to every patient who
might ever seek relief in the future and to all persons who might assert
that any violation of any federal statute was a lesser evil than their own
suffering.

In a concurring opinion, Justice John Paul Stevens rejected a medical
necessity exception for distributors such as our clients but he left the
matter open for patients. Distributors, he said, thrust the choice of evils
upon themselves by "electing" to assist suffering patients.

Not that long ago, we were debating whether states should enact laws to
compel citizens to act as Good Samaritans. Now we're saying the Good
Samaritan cannot stand in the shoes of those whose suffering he alleviates.

In other words, necessity is no defense if one's action is motivated by
compassion.

What is compassion but to feel the suffering of others and seek to
alleviate it? The court's message seems to be: Let's stick our heads in the
sand and pretend that the sick and suffering who surround us are not there.