CA NORML News
The Supreme Court case in no way concerns the validity of Proposition 215 or other state medical marijuana laws. Rather, the issue is whether the federal Controlled Substances Act allows a defense of medical necessity for distributors of marijuana. In specific, the Court is reviewing a ruling by the Ninth Circuit Court of Appeals that modified a lower court injunction against the OCBC so as to let it distribute marijuana to patients with medical necessity.
At the hearings, a majority of the justices appeared inclined to reverse the Ninth Circuit on procedural grounds, but skeptical of the government's request for a sweeping decision against medical use of marijuana. The Court is expected to announce its decision in late June.
Much of the hearing focused on narrow procedural questions, in particular whether the Ninth Circuit erred in modifying a civil injunction to permit a "third-party" necessity defense for distributors of marijuana.
Several justices suggested that the appropriate place to raise a necessity defense would be at a criminal trial for distribution or contempt of court, not in a civil injunction as ordered by the Ninth Circuit. "You're asking us to hold that this defense exists ... with no specific plaintiff before us, no specific case," Justice Anthony Kennedy told the club's attorney, Gerald Uelmen.
Chief Justice William Rehnquist argued that there were no good precedents for allowing a necessity defense as part of a civil injunction.
Justice Sandra Day O'Connor agreed, saying "the 9th Circuit erred when it created this blanket defense" to the Controlled Substances Act."
Justice Antonin Scalia was especially critical of allowing clubs to invoke a "third-party" necessity defense, saying that necessity should apply to patients who use marijuana, not those who distribute it. "That's a vast expansion beyond any necessity defense I've ever heard of," Scalia said, noting that the injunction let the OCBC "go into the business" of providing illegal drugs.
Justice Kennedy disagreed with Uelmen's argument that the Ninth Circuit had created only a very narrow exception for medical necessity, since the injunction doesn't require prescriptions or oversight by doctors. "It doesn't sound limited to me at all," he said, "Nonmedical people deciding the so-called medical necessity. That's a huge rewrite of the statute."
On the other hand, justices voiced doubts about the government's claim, stated by Acting Solicitor General Barbara Underwood, that "there is no accepted medical use of marijuana."
Justice Ruth Bader Ginsburg, who underwent radiation treatment for colon cancer last year, cited the case of a cancer patient "who was constantly vomiting, and the only thing that calmed him down" was marijuana. "That is not an uncommon experience," she said, "Am I wrong in thinking that there has been quite a bit of this going on in the medical profession?"
Justice Rehnquist, who wrote the Controlled Substances Act as an attorney for the Nixon Justice Department, claimed that Congress had meant to exclude a medical necessity when passing the CSA.
However, other justices appeared skeptical of Underwood's claim that "there simply is no medical necessity defense at all," suggesting that the defense should be used for criminal cases.
Justice Kennedy questioned why the government had followed the unusual procedure of filing for a civil injunction, rather than pursuing a criminal case. Justice David Souter suggested that the government was trying to avoid a jury trial. "Isn't the real concern here the popularity of these laws?" he asked, "It will be very difficult to get a conviction from a jury."
To the disappointment of Prop. 215 supporters, the Court did not address the crucial issue of states' rights. California Attorney General Bill Lockyer had filed an amicus brief for the OCBC arguing that the Ninth and Tenth Amendments limit the federal government's sovereignty to interfere with state medical marijuana laws. "The electorate in California have declared their view on this question, and it should be respected by this court as a democratic exercise properly reserved to the states," declared the brief, "The Constitution does not prevent the states from expressing their preference for allowing citizens to use cannabis to treat serious illness."
Other amicus briefs were filed by the California Medical Association, the National Pain Foundation, NORML, and the ACLU.
An opposing amicus brief was filed by the Drug Free America Foundation, which sent a vociferous band of activists to demonstrate outside the Court, interrupting the OCBC's press conference to declare that medical marijuana is a sham and a front for legalization.
Medical marijuana supporters came braced for an adverse decision. Last August, the Court voted to stay the Ninth Circuit ruling by a vote of 7 to 1, with only Justice John Paul Stevens dissenting. A change of three votes would be needed to sustain the Ninth Circuit ruling. (Justice Stephen Breyer, whose brother is presiding over the case in US district court, has recused himself from the case).
"We're gearing for a potential ruling that is coming down on a negative side," commented OCBC director Jeff Jones after the hearings. However, supporters voiced optimism that the Court's ruling would be made on narrow procedural grounds, and that state medical marijuana laws would remain safely intact.
NORML Director Keith Stroup said that a majority of justices appeared skeptical that the medical necessity defense should protect third party providers such as the OCBC, but seemed sympathetic to medical marijuana use by individual patients.
Justice Department officials were overheard complaining that the hearings had not been the "slam dunk" they had hoped for.
California NORML coordinator Dale Gieringer noted that even a broad ruling against medical necessity would have little practical effect, since the federal government rarely prosecutes individual patients, and only a tiny minority meet the strict standards of medical necessity, which requires that they face imminent dire harm and have exhausted all other legal alternatives. According to the OCBC, only 14 of its 7,000 members have been documented as qualifying for medical necessity.
"The danger is not that the Court will expand the feds' enforcement powers," says Gieringer, "But rather that an adverse decision will be mistakenly interpreted as the signal for a crackdown by the Justice Department."
Prop. 215 supporters are bracing for a broad-scale offensive by law enforcement in the event of an adverse decision. Justice department officials have been heard complaining about having their "ass kicked" over Prop. 215 and are known to be contemplating revenge. Clubs have reported increasing signs of surveillance in recent weeks. Suspicious "patients" with dubious medical needs have been turning up to buy pot. A federal offensive against the clubs is widely expected come June.
Still, observers doubt that the feds have either the resources or political support to shut down the clubs entirely. "The medical marijuana supply system in California is too extensive to be destroyed," argues Gieringer, "The most the feds can do is to temporarily disrupt it, as when Dan Lungren raided Dennis Peron's club or when the feds shut down the OCBC. There are now twice as many clubs as when the feds filed suit against the OCBC. The clubs provide a useful service and are valued in their communities. President Bush would be wise to avoid a confrontation and pursue a constructive policy. A crackdown will only heighten the conflict and hasten the inevitable day when the federal ban on medical marijuana is lifted."
President Bush, who has still not appointed a Drug Czar, has yet to indicate what course his administration will follow. Responding to the Supreme Court hearings, White House spokesman Ari Fleischer affirmed that the President is "opposed to the legalization of marijuana, including for medicinal purposes," but that he respects states' rights to pass referendums like California's.
(California NORML Reports, April 2001)