The Journal of
Cognitive Liberties

This article is from Vol. 2, Issue No. 3 pages 89-92
All rights reserved worldwide.  ISSN: 1527-3946





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.


The Court’s opinion in this case can be accessed online at:


A transcript of the oral argument can be accessed online at:


Most of the briefs filed in the case can be accessed online at:



jclcover1.jpg (4845 bytes)

Learn more about subscribing to the print version

Richard Glen Boire, J.D. is currently the executive director of the Center for Cognitive Liberty & Ethics.