The Hempire Strikes Back

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.

When the DOJ went to federal appeals court, however, it did not ask the court to rule on constitutional issues. The government appealed only a narrow question of whether the injunction could be amended to include medical necessity for the OCBC.

While arguing for the Cooperative in front of the Supreme Court, Uelman, a law professor at Santa Clara University, attempted to raise Ninth and Tenth Amendment issues pointing out that the U.S. Constitution does not allow the federal government to infringe on states rights. The OCBC legal team also briefed the court on constitutional issues of substantive due process and ramifications of the Commerce Clause.

But these arguments were not considered because they were not the ones the court had been asked to decide. This doesn't mean that the courts will forever ignore these issues. The justices themselves pointed out that the usefulness of a medical necessity defense for an individual patient who grows or possesses cannabis for their own use is still undecided.

Declaring that "the Court reaches beyond its holding, and beyond the facts of the case, by suggesting that the defense of necessity is unavailable for anyone under the Controlled Substances Act," Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg declined to sign Justice Thomas's opinion. They wrote a separate concurring opinion pointing out that the case left open many unanswered questions.

"Most notably," wrote Justice Stevens, "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."

So What Are the Constitutional Issues?

Perhaps the strongest constitutional argument advocates of medical marijuana can make is that of states' rights. In the concurring opinion written by the three justices, Justice Stevens declared that Justice Thomas' opinion "showed inadequate respect for the sovereign states that comprise our federal union."

In a footnote in his opinion, Thomas responded by noting that "because federal courts interpret, rather than author the federal criminal code, we are not at liberty to rewrite it."

A number of constitutional issues, including that of states' rights, were included in amicus briefs filed in support of the OCBC case. One such brief, filed by California State Attorney General Bill Lockyer, argued that, "The Controlled Substances Act unduly interferes with the privilege afforded the states by the Ninth Amendment to enact voter approved initiatives protecting the health, safety, and welfare of their citizens."

Lockyer's brief went on to assert that application of the Controlled Substances Act to prohibit the use of cannabis by seriously ill patients in states which have voter approved initiatives, violates traditional notions of state sovereignty protected by the Tenth Amendment.

According to Raich, Lockyer's Ninth and Tenth Amendment arguments offer fertile ground for further legal challenges now being considered by the OCBC.

"I think that the fact that the state of California made those arguments is an extremely important factor," says Raich. "If the federal government and the courts are going to respect the constitution, then they must give deference to the rights that the people have reserved for themselves and the powers that the state has reserved for itself regarding the regulation of medical cannabis."

Another constitutional argument raised by the OCBC before the Supreme Court is the issue of substantive due process. To simplify, this means Americans have the right to be free from pain and prolong their lives. Patient interveners in the OCBC case filed their own amicus brief that declared that the government may not abrogate those rights absent a compelling government interest, which does not exist in the case.

During oral arguments at the Supreme Court, the justices themselves raised questions about the role of due process in the case. Conservative Justice Antonin Scalia was among those most troubled by the government's injunction strategy raising the possibility that those charged with contempt in the case could go to jail without a jury trial.

Medical marijuana patient Sudi Pebbles Trippet filed her own compelling amicus brief that contended that the Controlled Substances Act violated the constitutional rights of both the patients and states as construed by the Supreme Court in numerous cases over the past two centuries.

Trippet argues that OCBC attorneys should pursue constitutional arguments that benefit more patients, not just those with a medical "necessity" for cannabis. Trippet, who uses cannabis to prevent and relieve migraine headaches, says she is one of the many OCBC patients who have the right to use cannabis under Prop. 215 but might not qualify under the necessity defense.

In her brief, Trippet specifically addressed the federal government's right to regulate state activities through the Commerce Clause. Many expansions of the federal government's authority to regulate citizen's activities have taken place under the Commerce Clause, which regulates interstate commerce. But Trippet argues that since the 1995 Lopez decision, a majority of the current Supreme Court believes that the Commerce Clause, "does not allow federal 'police' powers over local activities."

In the Lopez decision, the majority of the court found that a federal law that made it a crime to have a gun within a school zone." was unconstitutional because it attempted to regulate behavior inside a state.

Raich, who says the OCBC attorneys raised the Commerce Clause in their brief to the court, agrees with Trippet that it presents a strong constitutional argument. He notes that the Cooperative is not engaged in interstate commerce because all of its activities take place wholly within California.

The cannabis used by the Cooperative to supply patients is grown only in the state of California by California growers. The cannabis is distributed only within California by Californians to California patients under recommendations or approvals from California physicians. The patients then consume the cannabis within the borders of the state.

"It exceeded the federal government's power in this case to regulate or prohibit this commerce that took place only within the borders of California," says Raich. "It is another issue that will receive additional attention in further proceedings in this case."

Trippet also called attention to the 1925 case of Linder v. U.S., which found that the forerunner of the Controlled Substances Act could not bar doctors from supplying small quantities of drugs to patients for bona fide medical purposes. The ruling found that Congress lacked the constitutional authority to control the practice of medicine within a state. Raich notes that the California Medical Association also filed a brief in support of the OCBC case raising constitutional issues that support medical necessity.

Roe v. Wade is cited in Trippet's brief as an example of a case where the court found constitutional protection for the patient's right to choose one medical treatment, in this case abortion, with no need to claim medical necessity "and with no suggestion that the constitution gave abortion any more protection than it gives other medical choices."

Trippet noted that forcing a woman to bring a pregnancy to term also violates the Eighth Amendment's ban on cruel and unusual punishment. Raich agrees that this point is applicable in the OCBC case where denying patients cannabis would cause suffering. He notes that the OCBC brief to the court cites a Cooperative patient by the name of Robert Manardy who had cancer of the larynx and was suffering greatly as a result of cancer therapy. Before Manardy died, he filed a declaration for the case stating that cannabis was the only medicine that relieved his symptoms.

And Then There Are Other Potential Arguments ...

The OCBC case will now be handed back down to the Ninth Circuit, which may refer it once more to the district court for further proceedings. Raich says the Ninth Circuit will likely ask the parties what they would now like to do next. The Cooperative could continue with new arguments or bring another case on behalf of medical cannabis patients.

One potential defense for the Cooperative is what has become known as the joint user defense. According to Raich, the passing of controlled substances among various people for their own consumption is not considered distribution under the Controlled Substances Act. They may be engaging in possession, but not distribution.

The potential usefulness of the joint user defense to the Cooperative is that it is not charged with possession of cannabis. The Cooperative is charged with manufacturing and distributing cannabis as well as maintaining a place for such activity and conspiracy to engage in these activities. By employing the joint user defense, Raich says the Cooperative would not be liable for any of the activities for which it is alleged to be engaged.

There is one more potential argument that the OCBC can pursue. According to Raich, the judgment of the Supreme Court will not issue until 25 days after the date of the appeal. Under certain procedural circumstances, such as the issuance of an injunction or an amended injunction, defendants are also allowed to appeal issues before a final judgment is issued.

In the OCBC case, Raich says the cooperative could explore interlocutory issues regarding the Oakland City Council. In 1998 the Oakland City Council passed an ordinance that set up a medical cannabis distribution program that the City of Oakland itself runs. The city of Oakland contracted with the Cooperative to administer the program.

This is relevant because section 885B of the Controlled Substances Act declares that an officer of a city has immunity from the provisions in the act. This is intended to protect undercover narcotics officers who may, in the course of their duties, buy, sell, or possess otherwise illicit drugs. But it does not limit its applicability to such circumstances. Using the plain language of the Controlled Substances Act, Raich says that same immunity applies to the Cooperative and its employees. As operators of Oakland's cannabis distribution program they are officers of the city of Oakland.

Ann Harrison is a San Francisco based science journalist.


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