The Hempire Strikes Back

By Ann Harrison, AlterNet. Posted June 13, 2001.

Last month's Supreme Court decision to reject a medical necessity defense for the Oakland Cannabis Buyers Cooperative (OCBC) has set the stage for constitutional challenges that directly confront the federal government's ability to regulate medical marijuana.

The ruling, which barred the OCBC from distributing cannabis to patients, disappointed many supporters of medical marijuana. But OCBC attorney Robert Raich says the Cooperative's legal team is now considering a range of constitutional arguments and procedural strategies that will force the courts to address fundamental issues in the case. These constitutional arguments include questions of state sovereignty, trial by jury, due process, and the rights of patients to select their own medical treatments.

Raich compares the OCBC ruling to the Dred Scott decision of 1858 that reaffirmed the legality of slavery.

"In the course of time, the Supreme Court's decision will also be recognized as wrongly decided," says Raich, who believes the government's fight against medical marijuana patients has ignited a new civil war. "Any time a nation fights against its own citizens it is a civil war, and in this case the government is fighting against its weakest citizens, its medical patients."

If the U.S. government is indeed waging a campaign against sick people, the Supreme Court's ruling in the OCBC case is just the latest of many battles. The question for Raich and other drug-reform activists is how to create a legal and legislative strategy that will win the war for patients.

The immediate legal impact of the high court's decision is limited only to the OCBC, which has not been distributing medical cannabis since last August when the court stayed an amended injunction against the Cooperative. OCBC is barred from the manufacture or distribution of cannabis, but will continue to issue identification cards to patients that meet the requirements of Prop. 215.

What About the Other Cannabis Clubs?

"To the extent that other cannabis providers operate in a discreet fashion and fully in accordance with state law," says Raich. "I believe that the federal government will feel it has little interest in interfering with their operations."

The feds may well leave the other clubs alone. But Raich and others are still concerned about securing the rights of individual patients. While the OCBC case did not address the validity of Prop. 215 or other state medical cannabis laws, he is worried that local authorities might use the Supreme Court decision to harass patients in areas where they disapprove of medical marijuana.

"In those cases, the authorities might use the decision as an excuse to make life difficult for patients and that is a tragedy," says Raich.

Marijuana's listing by Congress as a Schedule I drug under the Controlled Substances Act means that "it has no currently accepted medical use in treatment in the United States." In oral arguments before the Supreme Court, the federal prosecutor assured the court that marijuana had no accepted medical use. The justices chose not to consider conflicting evidence and instead deferred the issue to Congress.

Both Raich and OCBC attorney Gerald Uelman are particularly angry that the Supreme Court ignored the fact that the federal government had been dispensing medical marijuana to a select group of patients for years through its Compassionate Investigative New Drug (IND) Program.

"The fact that the government itself operates this program, illustrates that medical cannabis can medically be distributed to patients in accordance with the Controlled Substances Act," says Raich.

Part of the reason that patients have a necessity to obtain cannabis from the Cooperative, says Raich, is that the federal medical marijuana supply program stopped. Uelman points out that the program was closed to new applicants in 1992 because too many AIDS patients were applying.

A Narrow Ruling and Many Unanswered Questions

In order to fully understand the effects of the Supreme Court's ruling, it is important to remember what the decision did not consider in the government's case against the OCBC.

The Supreme Court's 8-0 decision was a narrow ruling that declared that "medical necessity is not a defense to manufacturing or distributing marijuana." Medical necessity refers to a situation where obeying the law would result in death or great bodily harm for medical reasons.

The court's opinion did not hold that federal law trumps state law. It simply looked at whether the medical necessity defense could override federal law. Justice Clarence Thomas, writing for the majority, said that while drafting the Controlled Substances Act, Congress already considered whether cannabis could be used medically and decided that it could not.

Justice Thomas ruled that the U.S. Court of Appeals for the Ninth Circuit in San Francisco misinterpreted federal law when it ruled last year that the OCBC could raise a medical necessity defense against an effort by the U.S. Department of Justice to shut it down.

The DOJ originally brought the case against the Cooperative as a request for an injunction rather than as a criminal prosecution that would have required a jury trial. They did this because 70 percent of Oakland voters supported Prop. 215 to permit medical use of cannabis and were unlikely to convict the OCBC.

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