JUSTICES CONSIDER MEDICAL MARIJUANA

Is medical necessity a defense for use of marijuana?

That was the central question weighed by eight U.S. Supreme Court justices
yesterday as they heard United States v. Oakland Cannabis Buyers' Cooperative.

We attended the one-hour session to hear how the justices viewed marijuana
distribution by clubs or cooperatives for use against medical conditions
and diseases such as cancer, AIDS and chronic pain. We believe patients who
say marijuana provides some measure of relief for them and that there
should be some reasonable way to provide the drug.

On marijuana, federal and California law are at odds. Federal law holds
that marijuana is illegal. California's Prop. 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illegal substance with no known medical value could be superceded by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 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 Ninth 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. Judge 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.

The Oakland brief and several amicus briefs raised broad questions about
the federal government's power under the Ninth and Tenth Amendments, which
reserve rights and powers not given to the federal government to the states
and people.

Most of the Justices' questions Wednesday, however, 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 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. In response to
those decisions, he pointed out, the government set up a Compassionate
Investigative New Drug system under which patients are supplied marijuana
at taxpayer expense. The program stopped accepting new applicants in 1992
but eight patients are still receiving cannabis from the government. If the
program had not been ended, Mr. Uelmen argued, patients would have a
realistic alternative to cannabis cooperatives. Since the government ended
its own program rooted in medical necessity, however, it must allow private
citizens to step in and assume that burden themselves.

Robert Raich, an attorney for the Oakland cooperative who wrote much of the
brief but did not argue the case, told us there could be three possible
outcomes. The court could rule that the Ninth 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, 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 Breyer, whose
brother is District Court Judge Charles Breyer, recused himself, so only
eight justices heard this case. If there is a tie the Ninth Circuit ruling
- - that medical necessity is a legally cognizable defense in federal
cannabis possession cases - would stand, but only in the Ninth Circuit,
which includes most of the western states.

Based on the questions we heard, a fourth alternative is possible. The
court might rule that a medical necessity defense is available under
federal law but it can only be asserted by an individual patient and
decided judicially on a case-by-case basis. A third party like the Oakland
Cannabis Buyers Cooperative would not be able to make such determinations
on behalf of its clients because that might amount to a "blanket" necessity
exemption under the law rather than individual exemptions based on the merits.

Remember, however, this is not a prediction. However the Supreme Court
decides, California law, whose validity has not been challenged in court,
will remain in place. 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.