By Julia Hernandez, J.D. candidate
In 1996, California passed Proposition 215, the Compassionate Use Act. This law provided for people to possess and use cannabis without legal consequences if they had a medical necessity that required the use of marijuana. Marijuana is thought by some to deter the effects of such ailments as AIDS wasting syndrome and nausea caused by chemotherapy. After the passage of the Compassionate Use Act, cooperatives such as the Oakland Cannabis Buyers’ Cooperative sprang up to act as distributors and manufacturers of medicinal marijuana for needy patients. The Oakland Cannabis Buyers’ Cooperative was set up with the consent of Oakland’s city government and police department. Linda Greenhouse, Justices Set Back Use of Marijuana to Treat Sickness, http://www.nytimes.com/2001/05/15 (05/15/2001).
The federal government sued the Oakland Cannabis Buyers’ Cooperative in January 1998. The District Court for the Northern District Court of California granted a preliminary injunction which prohibited the possession of marijuana with the intent to manufacture and distribute. The injunction also prohibited the manufacture and distribution of marijuana. The cooperative openly violated the injunction. In response, the government initiated contempt proceedings. The cooperative cited medical necessity as a defense. The district court rejected this defense. The court further modified the injunction to allow the federal government to seize the premises of the cooperative.
The cooperative appealed this modified injunction and requested that the court allow distribution to medically needy patients. The cooperative promised to comply with the original injunction. This step made their appeal of the modified injunction moot. The Court of Appeals considered instead the denial of the motion to modify the injunction to allow distribution in cases of medical necessity. The court of appeals asserted that medical necessity was a viable defense in this case. The Court of Appeals then remanded the case to the District Court with orders to consider the medical necessity defense and set criteria to determine what constitutes medical necessity. In compliance with the instructions from the Court of Appeals, the District Court ordered that patients would have to show that they suffer from a serious medical condition; that they will suffer imminent harm if they do not use marijuana; that they need marijuana for the treatment of their condition or to alleviate the symptoms of it, and that they do not have any other reasonable, legal alternative to marijuana. Additionally, patients must have tried all other legal alternatives with no positive results or harmful side effects. The Supreme Court stayed the appeals court order pending its decision.
The Supreme Court Decision
The Supreme Court held that no implied medical necessity exists to prohibitions on the manufacture and distribution of marijuana under the Controlled Substances Act. United States v. Oakland Cannabis Buyers’ Cooperative, 121 S. Ct. 1711 (2001). Justice Clarence Thomas wrote the majority opinion. He was joined by Antonin Scalia, Sandra Day O’Connor, Anthony M. Kennedy and William H. Rehnquist. Justice Stephen G. Breyer refrained from participation in the opinion because his brother was involved in the lower court decision. Thomas concentrated on the language of the Controlled Substances Act by noting that it explicitly allows for only one exception to the prohibition on the manufacture and distribution of marijuana, for government approved research projects. Id. at 1718. The Court stressed that any exceptions to the Controlled Substances Act should be created by the legislature not the courts. Under the Controlled Substances Act, marijuana has no medical use. Thomas declines to consider that some individual cases or class of cases may indeed need marijuana for treatment of their ailments. Id. at 1722. The Court defers to the Congressional determination that marijuana has “no medical benefits worthy of an exception.” Furthermore, because marijuana has no medical use, the District Court erred when it considered medical necessity in fashioning the injunction. Id.
The Oakland Cannabis Cooperative defense team asserted that the statute without the medical necessity defense exceeds Congress’ commerce power, infringes on the substantive due process rights of the patients, and offends the liberties of people under the Fifth, Ninth, and Tenth Amendments. The Court did not address these issues reasoning that because the Court of Appeals did not address the issues, they should not either. Id. at 1719.
In a concurring opinion, Justices John Paul Stevens, Ruth Bader Ginsburg, and David H. Souter, clarified that the holding of the Court is narrow while the dicta in Justice Clarence Thomas’ opinion is broad. Id. at 1722. They emphasized that the holding of the Court established that medical necessity is not a defense to manufacturing and distributing marijuana. Id. The concurring opinion alternatively suggested that users of marijuana may successfully invoke necessity as a defense. Oakland Cannabis, 121 S. Ct. at 1723. The concurring Justices pointed out that the government did not make the assertion that necessity could never be a defense so it was unnecessary for the majority opinion to address this issue. Id.
The concurring opinion served to clarify and quantify the holding of the Court. Justice Thomas’ opinion with its broad dicta gave a strong indication of the impending fight among the justices on the issue of medical necessity as a defense for patients who use medical marijuana.
In response to the Supreme Court decision, cooperatives started to develop new strategies. Some have held classes to instruct patients on how to grow and maintain their own marijuana plants. Some created grow rooms where patients can cultivate their own marijuana plants. Both of these solutions avoid the manufacturing and distribution of marijuana. On the other hand, some cooperatives have continued business as usual.
The several states have had different reaction to the Supreme Court decision. Since the Supreme Court decision, California and Colorado have expanded their marijuana laws while Maine stopped their effort to supply marijuana to the ill. Nevada adopted a medical marijuana measure after the Supreme Court decision. The governor of Nevada, Kenny Guinn has stated that he will sign the bill into law. David Kravets, Feds Silent on Marijuana Strategy Despite High Court Victory, Associated Press Newswires (06/14/01).
The feds have been conspicuously silent on the Supreme Court ruling. The Bush administration has not taken action to enforce the ruling. Mark T. Quinlivan, the Justice Department Attorney, declined to comment on what the federal government will do in the future with respect to the ruling. David Kravets, Feds Silent on Marijuana Strategy Despite High Court Victory, Associated Press Newswires (06/14/01). State prosecutors have expressed reluctance to prosecute cases of distribution of marijuana for medical use. They say that the feds must enforce the court’s decision not them. Id. In the past, President George W. Bush has expressed that he thinks the decision to allow manufacture distribution of marijuana for the medically needy should be a state decision. However, President Bush is personally opposed to the use of marijuana for medical reasons. Susan Feeney, Bush Backs States’ Rights on Marijuana. He Opposes Medical Use but Favors Local Control, Dallas Morning News (10/20/99).
States’ maintain their ability to legalize marijuana for medical use while cooperatives must now watch their step when manufacturing or distributing marijuana. Patients can hope to be able to use medical necessity as a defense in their use of marijuana. The fight, will be difficult depending on federal circuit interpretations of the Supreme Court decisions. The future of legal marijuana use for medical reasons remains unclear in the wake of the Supreme Court decision.