Up in smoke

The U.S. Supreme Court seems poised to close down California's pot buyer's clubs.

Topics: Supreme Court,

Listening to the Supreme Court talk about doobies is like talking to your parents about sex — it’s so strangely out of place in the confines of the hallowed and conservative institution that it makes you cringe. But that’s exactly what the Supreme Court did Wednesday as oral arguments began in the case of U.S. vs. Oakland Cannabis Buyers’ Cooperative, the first medical marijuana case to reach the high court.

The case is a test of California’s Proposition 215, which was passed by California voters in 1996. Seven other states have also passed measures OK’ing the use of marijuana for medicinal purposes. But the case presents a philosophical conundrum for the court, which has in the past favored states’ rights, but now seems poised to overturn the will of California voters.

At issue is a 1999 federal appeals court ruling that holds, in the case of the California medical marijuana initiative, that a person could flout federal drug laws if there was a legitimate medical necessity for doing so. An injunction against the decision was issued when the Supreme Court took up the case last August. If the justices rule against the medical-necessity exemption, it will surely result in the closure of California’s remaining cannabis buyers’ clubs, and push marijuana distribution back underground.

The arguments before the justices were fairly straightforward. Barbara Underwood, the U.S. Justice Department attorney arguing on behalf of the federal government, stated that any ruling in support of medical marijuana would be tantamount to permitting the “operation of marijuana pharmacies,” run, in her words, by “charlatans.” In other words: Doobies are dubious. In her arguments, Underwood stated that no federal agency has established the medical effectiveness of marijuana; instead, they have established that it’s a substance ripe for abuse. She also pointed to synthetic alternatives to pot that can be used to treat the same conditions — like chronic pain and wasting in AIDS patients — that advocates say can be effectively treated with cannabis. She cited the example of Marinol, a synthetic version of marijuana’s active ingredient that is available by prescription. The availability of these alternatives, she argued, undermine the defense’s case that there is no alternative for some patients other than marijuana.

Considerable energy was also expended by the justices on the question of why the Justice Department had not sought criminal prosecution of buyers’ clubs instead of pursuing a civil injunction against them. The answer is obvious. As Justice Souter pointed out during the arguments, the popularity of Proposition 215 would make it very difficult for the government to get a conviction in any jury trial. In that respect, it made strong sense for the feds to pursue the current legal track. The case is already challenging enough for the federal government, since it encroaches on states’ rights territory, and any outcome other than upholding the federal appeals court decision will be unwelcome in the nation’s most populous state. And as a palpable backlash to the drug war grows, a prosecutorial strategy under U.S. drug laws would be politically unpopular. That is particularly true in California, where the Clinton administration’s threats to strip the prescription-writing authority of any doctor caught prescribing medical marijuana were not well received.

Santa Clara University law professor Gerald Uelmen, appearing on behalf of the Oakland Cannabis Buyers’ Cooperative, argued that denying seriously ill AIDS patients access to medical marijuana, which has been proven anecdotally effective in restoring the appetites in AIDS patients suffering from severe wasting, and also in helping combat chronic pain, would be the equivalent of killing them. Denying that access, Uelmen argued, would violate the due-process clause of the Constitution.

In his criticism of the defense’s case, Justice Antonin Scalia tried to separate what he suggested were two separate issues: Whether a patient should be able to determine medical necessity and whether or not buyers’ clubs should be exempted from federal drug laws in order to distribute cannabis. The justices seemed very critical of the idea of businesses distributing marijuana — with Justice Scalia arguing that a patient rather than a business would more likely have that right.

“That’s a vast expansion beyond any necessity defense I’ve ever heard of,” Scalia told the court.

Uelmen attempted to frame the issue more tightly, suggesting that that medical necessity would apply in life and death situations or in cases where the patient faced “imminent harm” like going blind (from symptoms of glaucoma, for example), starving or death. But the justices didn’t seem to buy that argument.

“It doesn’t seem that limited to me at all,” said Justice Anthony Kennedy. “That’s a huge rewrite of the statute,” he said, referring to the federal Controlled Substances Act. In fact, much of the debate in the oral arguments swirled around why the justices should overturn a decision by Congress, which deliberated and concluded that there is no medical value associated with marijuana before classifying pot in its category of the worst illicit drugs.

Chief Justice Rehnquist was even more brutal when he stated that Congress had already ruled out the medical-necessity defense, which has never previously been used before the Supreme Court.

Since its passage in 1996, Proposition 215 has spurred a rift between federal and state officials. State officials, wary of upsetting voters, have avoided prosecutions of both cannabis clubs and medical marijuana buyers, even as the feds have ratcheted up the pressure. Instead of pursuing criminal prosecutions, which would almost certainly be struck down by any civilian jury, the federal government has pursued the case on legal grounds in civil court. The case that reached the Supreme Court Wednesday was originally launched by the Clinton administration in 1998 against six California buyers’ clubs. Of those six, only Oakland’s is still in business today.

A U.S. District Court initially ruled in favor of the government’s position. That decision was issued by Charles Breyer, brother of Supreme Court Justice Stephen Breyer, who recused himself from the current case. However, Breyer’s decision was partially overturned by the 9th U.S. Circuit Court of Appeals, which proffered the medical necessity exemption.

A decision affirming the medical-necessity exemption is highly unlikely, given the composition of the current court. Besides, the case is premature. Regardless of what you believe about medical marijuana, there’s little conclusive scientific evidence yet that marijuana offers medicinal qualities unavailable in synthetic versions or other painkillers. To be certain, plenty of anecdotal evidence exists that marijuana can be beneficial in treating nausea associated with cancer, glaucoma and also wasting in AIDS patients. Indeed, one reason there is so little peer-reviewed research on marijuana is that the federal government prohibited such studies for years. Only recently have the feds loosened their grip on marijuana research — and they could still stand to ease restrictions further. It’s not hard to foresee studies 10 years from now that will raise serious questions about the intellectual weight of Congress’ decision-making.

But for now, it’s hard, if not outright impossible, to imagine the Supreme Court overruling Congress, which classified marijuana as a Schedule 1 drug after careful deliberation — especially on an issue as politically polarizing as medical marijuana. Were the defense able to present substantial scientific evidence of the medical benefit of pot, then a different outcome would surely be conceivable. But the current arguments appeared to be too big of a stretch even for the court’s staunchest liberals. And that’s bad news for the medical marijuana movement. If the court issues a broad ruling in the case affirming the Schedule 1 status of the drug, it could make it impossible for states to permit use of medical marijuana for years to come.

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

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