Let them eat chemo

Will the Supreme Court's ostrich-like ruling shut down the medical marijuana movement?

By Daniel Forbes

Published May 15, 2001 8:00AM (EDT)

Monday's Supreme Court decision against medical marijuana made one thing crystal clear. At every level -- executive, legislative and judicial -- the U.S. government remains steadfast in its opposition to the demon weed.

Even if it's being smoked by bald old ladies in wheelchairs.

Law enforcement officials, advocates and analysts disagree about the possible impact of the court's 8-0 decision that a federal law classifying marijuana as an illegal drug makes no exception for ill patients. And even some of those opposed to the ruling call it a legally justified, if narrow, ruling on the interpretion of federal drug law. But coming on top of the Clinton administration's unyielding opposition to medical marijuana, the refusal of Congress to consider removing marijuana from the list of Schedule I substances (the most serious classification) and President Bush's appointment of anti-marijuana hard-liner John Walters as drug czar, the court's ruling confirms that in the government's eyes, marijuana is still the front line of attack in the drug war. As the most widely used illegal drug, it remains central to the government's anti-drug strategy: Drug warriors clearly fear that any wide-scale medical use would point to its relative harmlessness and undercut decades of official pronouncements that it is a dangerous and addictive "gateway" drug.

At the same time, the ruling was sufficiently narrow that it's possible it will have little actual effect. Experts agree that the most visible "buyers' clubs" -- collectives organized to provide marijuana to help patients suffering from cancer, AIDS, glaucoma, M.S. and other diseases -- may be forced to shut down, and new ones discouraged. But the majority of patients who use marijuana, say many experts, will remain unaffected -- making the ruling symbolic but relatively toothless. Considering the tricky public relations issues raised by medical marijuana -- it's one thing to demonize some ghetto kid, it's another to turn a cold shoulder to vomiting cancer patients -- and the public's expressed support for it (in a CNN poll, 79 percent of Americans supported legalizing medicinal marijuana), this may be exactly the outcome the court desired.

Any thoughts that the justices were going to deviate from official dogma on marijuana were dispelled when they chose to rely on the 30-year-old Controlled Substances Act for guidance on pot's medical utility. Disregarding the ever-growing evidence of pot's medicinal value, including a government-sponsored 1999 report by the Institute of Medicine and the pro-medical-marijuana position of the California Medical Association, the court held that Congress' well-weathered act was the last word.

The majority opinion, written by Justice Clarence Thomas, was relatively narrow. The court did not indicate a willingness to strike down state laws such as California's Prop. 215, which legalized medical marijuana. It also left it unclear whether all medical marijuana use, including personal cultivation and use, is illegal, or only large-scale distribution efforts like buyers' clubs. A split on the court appeared over this issue, with three of the court's more liberal justices expressing concerns that their more conservative brethren had not left room for legitimate medical marijuana use. In a separate concurring opinion, which was joined by Justices Ruth Bader Ginsburg and David Souter, Justice John Paul Stevens wrote, "Most notably, whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here."

Some advocates share the liberal justices' fears that the conservative majority, if given the opportunity, would rule against an individual medical marijuana user. Kevin Zeese, president of Common Sense for Drug Policy, said, "If a personal case of a medical necessity defense was before them, I think this court would get five votes against it."

Beyond that hypothetical outcome, observers agree that the main effect of the ruling will be to shut down buyers' clubs. Where they disagree is on how much impact that will have. Dave Fratello, who as campaign manager for the medical marijuana advocacy group Americans for Medical Rights has helped push through eight state ballot initiatives, acknowledged that "you won't see new clubs above ground," but downplayed the effect of that: "It's hard to say there'll be any concrete effect on anyone's activities. There's word of mouth and an extensive underground. The only thing missing is a storefront signifying an above-ground operation. And that's symbolic."

Daniel Abrahamson, director of legal affairs for the George Soros-backed Lindesmith-Drug Policy Foundation, a liberal advocacy group, also downplayed the ruling, saying, "I think the decision will have fairly little practical import. Most patients don't use buyers' clubs. Most grow their own or get it elsewhere." Pointing to the fact that use by individual patients was not considered by the court, Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws, agreed, saying, "The legal use of medical marijuana by seriously ill patients in states that have legalized its use is neither threatened nor challenged by this decision."

But San Francisco district attorney Terrence Hallinan, who is a firm supporter of Prop. 215, believes the ruling will have a significant impact. "I'm surprised at the breadth of the decision," he said. "The court seemed to go out of its way to knock out any medical necessity defense." As a result of the ruling, Hallinan expects above-ground buyers' clubs to close down or be closed. "I'm disappointed," he said. "The people of San Franciso, Calif., and the nation feel medical marijuana should be available. It's a backward move." Few marijuana prosecutions are handled at the federal level, but on the infrequent occasions when the government does step in, he expects it to continue its politically safe policy of seeking only civil injunctions against buyers' clubs. However, he thinks the ruling could also result in criminal prosecutions -- and believes that if it comes to that, the feds will find juries to convict.

As these comments indicate, what the court's ruling immediately affects -- perhaps the only thing it affects -- is distribution. Afraid of going after sick people directly, the court concentrated on manufacturing and distribution -- the pushers, if you will. But if the court is also telling individual patients that medical marijuana is acceptable for them, as at least the concurring opinion seems to, then the ruling is not only vague, it's self-contradictory and ultimately morally untenable. What's the point of telling sick people it's OK to smoke pot to relieve the symptoms of AIDS or the agony of chemo, but denying them a legal means of acquiring it? The buyers' clubs came into existence to address this very problem -- but it's the buyers' clubs that will be driven out of business or underground by this ruling.

In the end, the impact may be largely symbolic. In California, ground zero in the medical marijuana fight, there is only one high-profile buyers' club still operating (in Los Angeles), and it has only 860 active members. Activists interviewed were not aware of any other club with, in effect, a shingle hanging over its door anywhere else in the country. Even the Oakland Cannabis Buyers Cooperative, whose successful distribution led to the case finally before the Supreme Court, only had between 6,000 and 7,000 "certified" members.

But symbolic or not, not surprisingly, many people close to the issue in the state were bitterly disappointed with the ruling. Beverly Hills attorney Alan Isaacman, who has defended medical marijuana defendants, said, "Patients are being treated like criminals doing something outside the law. The government ought not put sick people in that position." Scott Imler, head of perhaps the highest-profile club in the country still distributing pot, said, "We're tired of the hiding, tired of the shame -- we wanted to move past that. We're not prepared to go back to hiding or to buying on the streets."

Jeff Jones, co-founder and executive director of the Oakland Cannabis Buyers Cooperative named in the case, said, "As the facts stand, we're banned." But he believes today's ruling opens new avenues of litigation involving the right of patients to remain free from harm.

The ruling's effects on states that have passed medical marijuana initiatives remain unclear. In a statement yesterday, California Attorney General Bill Lockyer expressed regret at the decision, saying it was "unfortunate that the court was unable to respect California's historic role as a ... leader in the effort to help sick and dying residents who have no hope for other relief than through medical marijuana." Lockyer promised to review the ruling "before any conclusions are reached or recommendations are made about California law."

Eight other states that have passed medical marijuana laws -- Arizona, Alaska, Colorado, Maine, Nevada, Oregon, Washington and Hawaii -- could be affected as well, should the feds decide to act against them. In Oregon, Leland Berger, legal counsel to the political action committee Voter Power, says that his state's legislation was written so narrowly, with definite limits as to weight and the number of plants, that the ruling will have essentially "no effect on the Oregon medical marijuana act." Berger adds that the federal acting solicitor general arguing the government's case before the high court admitted that any ruling will not impact state statutes: "States can pass laws independent of the federal government and independent of the federal Controlled Substance Act," in Berger's words.

As to the specific legal fallout from the ruling, few expect the federal prisons to suddenly swell with buyers' club operators serving hard time. (Patients are even less likely to be prosecuted: As Dave Fratello says, the federal government is "terrified of the horrible P.R." of a criminal prosecution of patients.) The federal government finds itself boxed in: If it opts to criminally prosecute the clubs, it can't expect many victories -- Hallinan's claims notwithstanding, it seems unlikely that many juries are prepared to send people to jail for distributing medical marijuana. And a civil injunction, once it moves to the contempt stage, involves a jury as well. Still, should some unlucky patient or buyers' club employee fall under federal jurisdiction, given federal mandatory minimums, the penalties are far harsher.

In the end, responsibility to break out of the current situation rests with Congress -- whose ancient classification of marijuana as a dangerous drug on a par with heroin allowed the court to maintain the dysfunctional status quo. Rep. Barney Frank, D-Mass., has introduced a bill in Congress that would reclassify marijuana as a Schedule II drug, meaning doctors could prescribe it, with restrictions. But action on the part of Congress, now or in the foreseeable future, is unlikely. Unwilling to appear "soft on drugs," afraid to allow scientific studies or even hearings, Congress has simply buried its head in the sand. Medical marijuana advocate Fratello said, "There's been no electoral consequences for Congress' cruelty for supporting the ban on medical marijuana. They just refuse to take on the issue. They won't even hold hearings, because they don't want to be confronted by patients." Public pressure on Congress hasn't materialized. While three-quarters of the public supports medical use, said Fratello, it isn't a pocketbook issue. Only when a family member has cancer or AIDS does the issue hit home -- and then people of all political stripes, from the most liberal to the most conservative, support medical use, he says.

With no action expected on the part of Congress, the arena moves to the states. It will be interesting to see if state legislatures move to legalize medical use in the face of Monday's ruling. Fratello notes that two states that have legalized medical pot, Maine and Nevada, now have bills active in their legislatures to provide for some form of state-authorized distribution -- which might be legal under the court's narrow ruling. Fratello feels the two bills have an "excellent chance" of passage.

There is also considerable wiggle room for ingenious distributors to get around the court's ruling. Advocate Zeese notes that advocates have been selling marijuana clones aggressively, and that it would also be hard to forestall cooperatives sending out "consulting gardners." Moreover, it's possible for marijuana-growing establishments to rent out space (and expertise) to individuals to grow a single plant or three, which might thwart a ruling based on distribution.

But all grow-it-yourself alternatives have a serious problem. As buyers' club operator Scott Imler points out, "Starting chemotherapy, you only get a few days' notice. You can't wait the five months it takes to harvest a plant."

As for how patients will react to the ruling, most will probably keep their heads down and continue trying to obtain their medicine as best they can. San Francisco district attorney Hallinan does not anticipate civil disobedience or people seeking arrest. Lindesmith lawyer Abrahamson said, "There'll be a few demonstrations. But most patients want to get on with their lives discreetly. They don't want to wave a flag to the feds. If you have too high a profile, that invites federal prosecution."

But advocate Fratello thinks a more confrontational road may lie ahead. "This case came out of open defiance of federal courts, and you may see more," he said. One activist, who asked not to be identified, noted there are already plans circulating on the Internet calling for "rash disobedience." Some activists may descend on the federal growing operation at the University of Mississippi to highlight the hypocrisy of the federal government's growing pot but forbidding others to do so.

The court's ruling, it's clear, is far from the last salvo in this struggle.

Daniel Forbes

Daniel Forbes is a New York freelancer who writes on social policy and the media.

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