cannabisnews.com: Justices Consider Medical Marijuana Justices Consider Medical Marijuana Posted by FoM on March 29, 2001 at 18:21:46 PT Commentary Source: Orange County Register 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on whether a 1970 federal law classifying marijuana as an illegal substance with no known medical value could be superceded by patient need.The case grew out of a 1998 civil injunction requested by the federal government, under federal law, preventing the Oakland cooperative and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. Note: Is medical necessity a defense for use of marijuana? Source: Orange County Register (CA)Published: Thursday, March 29, 2001Copyright: 2001 The Orange County RegisterAddress: P.O. Box 11626, Santa Ana, CA 92711Fax: (714) 565-3657Contact: letters link.freedom.comWebsite: http://www.ocregister.com/Related Articles & Web Site:Oakland Cannabis Buyers' Cooperativehttp://www.rxcbc.org/Justices Narrowing Arguments in Marijuana Casehttp://cannabisnews.com/news/thread9196.shtmlHigh Court Tests Medical Pot Co-ops http://cannabisnews.com/news/thread9195.shtmlUp In Smoke - Salon Magazinehttp://cannabisnews.com/news/thread9192.shtml END SNIP --> Snipped Home Comment Email Register Recent Comments Help Comment #4 posted by MDG on March 30, 2001 at 00:03:42 PT Here's a summary for the previous link. Why isn't this all over the news?!Mike... Libertarians launch Internet campaign to thwart government attack on medical pri [ Post Comment ] Comment #3 posted by MDG on March 29, 2001 at 23:58:39 PT ALERT!!! MEDICAL PRIVACY DYING!!! Everyone! Your medical privacy is about to die! Go to the following site and do what you can!HURRY!!!Mike... Defend Your Privacy!!! [ Post Comment ] Comment #2 posted by craven on March 29, 2001 at 19:59:28 PT right??? I didnt read the whole article.. but so what if in 1970 it was places as a schedule 1 drug? Things change.. In 1970 a loaf of bread didnt cost $2.. Gas wasn't $1.59 a gallon...In the 50's a couple on TV, if seated on a bed, HAD to have at lease three (of the four) feet on the floor at all times to avoid fines from the FCC.. Nowadays even cartoons can say all but a few "dirty" words...Everything else changes with the times, why cant the laws? [ Post Comment ] Comment #1 posted by FoM on March 29, 2001 at 18:30:51 PT Take Action! Help Make Medical Marijuana Legal Help make medical marijuana legal under federal law. http://www.stopthedrugwar.org/medicalmarijuana/ My Medical Marijuana Page [ Post Comment ] Post Comment Name: Optional Password: E-Mail: Subject: Comment: [Please refrain from using profanity in your message] Link URL: Link Title: