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Medical Necessity Defense Limited
Richard Glen Boire
On Monday May 14,
the United States Supreme Court dealt a blow to organizations that grow or
distribute medical marijuana to sick people, holding that such
organizations may not raise a medical necessity defense to charges of
violating the federal prohibition on marijuana.
According to the Court, by placing marijuana in
Schedule I of the Controlled Substances Act—the Schedule that is the
most restrictive possible—Congress determined that marijuana has “no
currently accepted medical use.” The only exception to the strict
prohibition on growing or distributing marijuana, said the Court, is for
Government-approved research projects.
Writing for the majority, Justice Thomas stated that by
expressly determining that marijuana has no accepted medical use, Congress
foreclosed a medical necessity defense by an organization that grows or
distributes marijuana to sick people:
It is clear from the text of the [Controlled
Substances] Act that Congress has made a determination that marijuana has
no medical benefits worthy of an exception. The statute expressly
contemplates that many drugs “have a useful and legitimate medical
purpose and are necessary to maintain the health and general welfare of
the American people,” but it includes no exception at all for any
medical use of marijuana. Unwilling to view this omission as an accident,
and unable in any event to override a legislative determination manifest
in a statute, we reject the [Oakland Cannabis Buyer’s] Cooperative
[medical necessity] argument. (Opinion, p. 9.)
The Oakland Cannabis Buyer’s Club raised several
constitutional issues, arguing that the Controlled Substance Act exceeded
Congress’ Commerce Clause powers, violated the substantive due process
rights of patients, and offends the fundamental liberties of the people
under the Fifth, Ninth, and Tenth Amendments. The Court, however, refused
to consider these important issues because they were not previously
addressed by the Court of Appeals.
The most disturbing aspect of the Supreme Court’s
decision is the suggestion that a medical necessity defense might not even
be available to patients. This suggestion (which in legal
terminology is called “dicta”—superfluous statements that go beyond
the facts before the court, and are not binding in future cases) prompted
Justices Stevens, Souter and Ginsburg to file a concurring opinion rather
than join the majority opinion. While the concurring justices agreed that
the majority was “surely correct” in holding that a medical necessity
defense is not available to third parties that grow or distribute medical
marijuana to sick people, the concurring justices emphasized that the
majority was reaching beyond the facts of the case by suggesting that the
defense of necessity is unavailable even to sick people who grow or
possess their own medical marijuana. Writing for the concurring justices,
Justice Stevens cautioned:
Because necessity was raised in this case as a defense
to distribution, the Court need not venture an opinion on whether the
defense is available to anyone other than distributors. 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. (Stevens, J.,
concurring, pp. 2-3.)
The majority’s dicta is indeed troubling. It
indicates that, in the abstract, at least five of the Court’s current
justices would likely reject a medical necessity defense raised by a sick
person who was using marijuana with his or her doctor’s approval. Given
that the U.S. Supreme Court is supposed to be our country’s highest
repository for justice, the decision is a clear indication that in the War
on (Some) Drugs there are no limits—even the sick will be sacrificed.
The Supreme Court had the opportunity in this case—the
one and only marijuana case to ever be heard in the Supreme Court—to
draw some important lines, to set some boundaries on the insanity that
makes otherwise law-abiding citizens criminals for smoking a plant that
their doctors tell them may help reduce their suffering or aid their
healing. Instead, by completely deferring to Congress’ 1970
determination that marijuana has no medical use, the Court endorsed the
continuation of a government policy that flies in the face of scientific
facts and basic notions of justice.
Perhaps the best thing that can be said about the Court’s
decision is that it is limited to federal cases brought under the
Controlled Substances Act. It does not overturn state laws that allow
seriously ill people to possess and grow their own medical marijuana.
(Such laws now exist in nine states: Alaska, Arizona, California,
Colorado, Hawaii, Nevada, Maine, Oregon and Washington.) Since well over
90 percent of marijuana arrests occur at the state level, state medical
marijuana laws can continue to provide medical users with important
statutory protection from criminal prosecution.
Notes
The Court’s opinion in this case can be accessed
online at: http://www.supremecourtus.gov/opinions/00pdf/00-151.pdf
A transcript of the oral argument can be accessed
online at: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/00-151.pdf
Most of the briefs filed in the case can be accessed
online at: http://www.druglibrary.org/ocbc/
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