As discussed in a previous issue of LMP, this case represents a skirmish in the war between some state governments and the federal government over the medical use of marijuana. A citizen initiative put a proposition on the California ballot to legalize the medical use of marijuana. When the initiative passed, the language of the proposition was found to be so broad that it essentially legalized cannabis use as long as the user made some claim as to medical necessity. Had this been a narrowly drafted exception for medical necessity, as in the Alaska medical marijuana use law discussed in Rollins v. Ulmer, No. S-9197 (Alaska 2000), it might not have provoked the same confrontation with the federal government, which sees cannabis use as a violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Controlled Substances Act"). Under the provisions of the California initiative, marijuana was dispensed in poorly regulated private clubs which had little incentive to control who was provided marijuana. The Department of Justice (DOJ) wanted to stop the distribution of marijuana, but was sensitive to the adverse publicity that would follow the prosecution of the People with AIDS and cancer sufferers mixed in with the other customers. The government sought an injunction against the Oakland Cannabis Buyers' Cooperative and others (collectively "OCBC") to prevent their distribution of cannabis.
The district court enjoined the distribution of marijuana as a violation of the Controlled Substances Act. The OCBC appealed, claiming that the injunction should not have been granted on grounds of a necessity defense to the Controlled Substances Act. (This is an attractive procedural device because it allows the necessity defense to be raised without the threat of jail time if it rejected.) The Ninth Circuit held that it would be proper to consider a medical necessity defense to the requested injunction, and instructed to district to reconsider its decision in light of precedent on the use of the necessity defense in other contexts. Noting this decision, the district court reformed its injunction in U.S. v. Oakland Cannabis Buyers' Co-op., 2000 WL 1517166 (N.D.Cal. Jul 17, 2000). The court continued its previous injunction against the cultivation and distribution of marijuana, but added this critical exception:
"The foregoing injunction does not apply to the distribution of cannabis by the Oakland Cannabis Buyers' Cooperative and Jeffrey Jones to patient-members who (1) suffer from a serious medical condition, (2) will suffer imminent harm if the patient-member does not have access to cannabis, (3) need cannabis for the treatment of the patient-member's medical condition, or need cannabis to alleviate the medical condition or symptoms associated with the medical condition, and (4) have no reasonable legal alternative to cannabis for the effective treatment or alleviation of the patient-member's medical condition or symptoms associated with the medical condition because the patient-member has tried all other legal alternatives to cannabis and the alternatives have been ineffective in treating or alleviating the patient-member's medical condition or symptoms associated with the medical condition, or the alternatives result in side effects which the patient-member cannot reasonably tolerate."
With this ruling, the court set up a direct conflict with
the federal Controlled Substances Act, which does not recognize a medical necessity
exception to its prohibition of the distribution and use of marijuana outside
federally regulated medical research programs. The United States Supreme
Court accepted the case for review and unanimously rejected a medical necessity
defense under the terms of the lower court's opinion. The key point in
the opinion, which is stressed by the concurrence, is that the only situation
under consideration is the distribution of marijuana, not the use of marijuana
by a patient who cannot otherwise obtain relief for his/her medical condition.
The Controlled Substances Act is a clear statement by Congress that the federal
government is the only legal supplier of marijuana and that its only legal use
is in federally approved medical research. The court found that this did
not allow for a medical necessity defense by the distributors. Since a
possible medical necessity defense by users was not before the court, it is
not foreclosed by this opinion. Supports of the medical use of marijuana
point to the right to die cases, Washington
v. Glucksberg, 521 U.S. 702 (1997) and Vacco
v. Quill, 117 S. Ct. 2293 (U.S. 1997), which indicate in dicta that
there may be a constitutional right to pain relief, even if this would contravene
the Controlled Substances Act. Even assuming this right exists, it is
not a right to a specific pain killer, and it is predicated on the proof that
a given painkiller is effective. Until marijuana is proven effective for
conditions it is used for, and it is also shown that nothing else is effective
for these conditions, the court can be expected to defer to Controlled Substances
Act. Unfortunately, until the government makes it easier to obtain marijuana
for medical research, these questions will be difficult to resolve.
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