The Supreme Court: Using Marijuana

Using Marijuana

One way that states are trying to help patients deal with pain and other difficulties faced when seriously or terminally ill is by permitting the use of marijuana for medicinal purposes. This choice is in direct conflict with the federal government's attempts to control illegal drugs.

President Bush ordered the U.S. Justice Department to step up enforcement efforts in states that enacted laws that permit doctors to recommend marijuana. These states include Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington. So far only one case has made it all the way to the Supreme Court—United States v. Oakland Cannabis Buyers Cooperative. This case did not involve a physician, but instead involved a cooperative where people bought the prescribed marijuana or cannabis.

The cooperative is a not-for-profit organization that operates in downtown Oakland. Its medical director is a physician and there are registered nurses on staff during business hours. In order to become a member of the cooperative a patient must have a written statement from a treating physician that states marijuana therapy will help and must submit to a screening interview. If accepted the patient will receive an identification card that allows him or her to obtain marijuana from the cooperative.

In January 1998, the United States government sued the cooperative and its executive director, Jeffrey Jones, in district court seeking to stop the cooperative from distributing marijuana. Even though the cooperative's activities are legal in California, distributing and manufacturing of marijuana, a controlled substance, violates the federal Controlled Substances Act. The district court granted a preliminary injunction to stop the cooperative.

The cooperative did not appeal the injunction, but instead continued to violate the law by distributing marijuana. The U.S. government then initiated contempt proceedings against the cooperative. The cooperative contended that marijuana is the only drug that can alleviate the pain and other debilitating symptoms of the cooperative's patients. The district court didn't buy that argument, found the cooperative in contempt and gave the U.S. Marshal the power to seize the cooperative's premises. The cooperative filed a motion to modify the injunction to permit distributions that were medically necessary, which was rejected by the district court. The cooperative appealed the case to the 9th Circuit Court, which ruled the district court should have weighted the “public interest” and considered “factors such as the serious harm in depriving patients of marijuana.” The district court then modified its injunction to incorporate the medically necessary defense.

The U.S. government then appealed to the Supreme Court questioning the circuit court's ruling that medical necessity is a legally cognizable defense to violations of the Controlled Substances Act. The Court ruled unanimously to overturn the circuit court and decided there was no medical necessity exception to the Controlled Substances Act's prohibitions on manufacturing and distributing marijuana. Justice Thomas wrote the opinion for the Court and was joined by Chief Justice Rehnquist and Justices Kennedy, O'Connor and Scalia. Justice Stevens filed a concurring opinion and was joined by Justices Ginsburg and Souter. Justice Breyer did not participate in this case.

Justice Thomas wrote for the Court on May 14, 2001:

• “Because that Act classifies marijuana as a Schedule I controlled substance, it provides only one express exception to the prohibitions on manufacturing and distributing the drug: Government-approved research projects. The Cooperative's contention that a common-law medical necessity defense should be written into the Act is rejected. There is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute. But that question need not be answered to resolve the issue presented here, for the terms of the Controlled Substances Act leave no doubt that the medical necessity defense is unavailable.”

In an attempt to fix this problem Congressman Barney Frank (D-Massachusetts) introduced a bill in 2001 and again on May 22, 2003, called the “States Rights to Medical Marijuana Act.” This bill moves marijuana from the Schedule I of the Controlled Substances Act to Schedule II, which allows more flexibility. It also allows:

• Physicians to prescribe marijuana for medical use;
• Patients to obtain and use marijuana based on a prescription or recommendation by a physician for medical use;
• Pharmacies to obtain and hold marijuana for the prescription or recommendation of marijuana by a physician for medical use under applicable state law.

In October 2003, the Supreme Court decided not to take a related case involving whether doctors could inform patients about the use of medical marijuana. By not taking the case the Supreme Court let stand a lower court ruling that doctors may not be investigated, threatened, or punished by federal regulators for recommending marijuana as a medical treatment for their patients.

This ruling allows doctors in the states that permit marijuana for medical uses to discuss this option freely with their patients without fear a losing of their license to prescribe drugs. As part of the war on drugs, the Bush Administration hoped to overturn these state laws. These hopes were dashed by the Court's decision not to take the case. Medical marijuana advocates hope to use this victory to encourage other states to pass similar laws.