Them Eat Chemo
Will the Supreme Court's
ostrich-like ruling shut down the medical marijuana movement?
May 15, 2001
Supreme Court decision against medical marijuana made one thing
crystal clear. At every level -- executive, legislative and
judicial -- the U.S. government remains steadfast in its opposition
to the demon weed.
it's being smoked by bald old ladies in wheelchairs.
officials, advocates and analysts disagree about the possible
impact of the court's 8-0 decision that a federal law classifying
marijuana as an illegal drug makes no exception for ill patients.
And even some of those opposed to the ruling call it a legally
justified, if narrow, ruling on the interpretion of federal
drug law. But coming on top of the Clinton administration's
unyielding opposition to medical marijuana, the refusal of Congress
to consider removing marijuana from the list of Schedule 1 substances
(the most serious classification) and President Bush's appointment
of anti-marijuana hardliner John P. Walters as drug czar, the
effect of the court's ruling confirms that in the government's
eyes, marijuana is still the front line of attack in the drug
war. As the most widely used illegal drug, it remains central
to the government's anti-drug strategy: Drug warriors clearly
fear that any wide-scale medical use would point to its relative
harmlessness and undercut decades of official pronouncements
that it is a dangerous and addictive "gateway" drug.
same time, the ruling was sufficiently narrow that it's possible
it will have little actual effect. Experts agreed that the most
visible "buyers' clubs" -- collectives organized to provide
marijuana to help patients suffering from cancer, AIDS, glaucoma,
M.S. and other diseases -- may be forced to shut down, and new
ones discouraged. But the majority of patients who use marijuana,
say many experts, will remain unaffected -- making the ruling
symbolic, but relatively toothless. Considering the tricky public-relations
issues raised by medical marijuana -- it's one thing to demonize
some ghetto kid, it's another to turn a cold shoulder to vomiting
cancer patients -- and the public's expressed support for it
(in a CNN poll, 79 percent of Americans supported legalizing
medicinal marijuana),this may be exactly the outcome the court
that the justices were going to deviate from official dogma
on marijuana were dispelled when they chose to rely on the 30-year-old
Controlled Substances Act for guidance on pot's medical utility.
Disregarding the ever-growing evidence of pot's medicinal value,
including a government-sponsored 1999 report by the Institute
of Medicine and the pro-medical-marijuana position of the California
Medical Association, the court held that Congress's well-weathered
act was the last word.
opinion, written by Justice Clarence Thomas, was relatively
narrow. The court did not indicate a willingness to strike down
state laws such as California's Prop. 215, which legalized medical
marijuana. It also left it unclear whether all medical
marijuana use, including personal cultivation and use, is illegal,
or only large-scale distribution efforts like buyers' clubs.
A split on the court appeared over this issue, with three of
the court's more liberal justices expressing concerns that their
more conservative brethren had not left room for legitimate
medical marijuana use. In a separate concurring opinion, which
was joined by Justices Ruth Bader Ginsburg and David Souter,
Justice John Paul Stevens wrote, "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."
shared the liberal justices' fears that the conservative majority,
if given the opportunity, would rule against an individual medical
marijuana user. Kevin Zeese, president of Common Sense for Drug
Policy, said, "If a personal case of a medical necessity defense
was before them, I think this court would get five votes against
hypothetical outcome, observers agree that the main effect of
the ruling will be to shut down buyers' clubs. Where they disagree
is on how much impact that will have. Dave Fratello, who as
campaign manager for the medical marijuana advocacy group Americans
for Medical Rights has helped push through eight state ballot
initiatives, acknowledged that "you won't see new clubs above
ground," but downplayed the effect of that: "It's hard to say
there'll be any concrete effect on anyone's activities. There's
word of mouth and an extensive underground. The only thing missing
is a store front signifying an above-ground operation. And that's
Abrahamson, director of legal affairs for the George Soros-backed
Lindesmith-Drug Policy Foundation, a liberal advocacy group,
also downplayed the ruling, saying, "I think the decision will
have fairly little practical import. Most patients don't use
buyers' clubs. Most grow their own or get it elsewhere." Pointing
to the fact that use by individual patients was not considered
by the court, Keith Stroup, executive director of the National
Organization to Reform Marijuana Laws, agreed, saying, "The
legal use of medical marijuana by seriously ill patients in
states that have legalized its use is neither threatened nor
challenged by this decision."
Francisco District Attorney Terrence Hallinan, who is a firm
supporter of Prop. 215, believes the ruling will have a significant
impact. "I'm surprised at the breadth of the decision," he said.
"The court seemed to go out of its way to knock out any medical
necessity defense." As a result of the ruling, Hallinan expects
above-ground buyers' clubs to close down or be closed. "I'm
disappointed," he said. "The people of San Franciso, California
and the nation feel medical marijuana should be available. It's
a backward move." Few marijuana prosecutions are handled at
the federal level, but on the infrequent occasions when the
government does step in, he expects it to continue its politically
safe policy of seeking only civil injunctions against buyers'
clubs. However, he thinks the ruling could also result in criminal
prosecutions -- and believes that if it comes to that, the feds
will find juries to convict.
comments indicate, what the court's ruling immediately affects
-- perhaps the only thing it affects -- is distribution. Afraid
of going after sick people directly, the court concentrated
on manufacturing and distribution -- the pushers, if you will.
But if the court is also telling individual patients that medical
marijuana is acceptable for them, as at least the concurring
opinion seems to, then the ruling is not only vague, it's self-contradictory
and ultimately morally untenable. What's the point of telling
sick people it's OK to smoke pot to relieve the symptoms of
AIDS or the agony of chemo, but denying them a legal means of
acquiring it? The buyers' clubs came into existence to address
this very problem -- but it's the buyers' clubs that will be
driven out of business or underground by this ruling.
end, the impact may be largely symbolic. In California, ground
zero in the medical marijuana fight, there is only one high-profile
buyers' club still operating (in Los Angeles), and it has only
860 active members. Activists interviewed were not aware of
any other club with, in effect, a shingle hanging over its door,
anywhere else in the country. Even the Oakland Cannabis Buyers
Cooperative, whose successful distribution led to the case finally
before the Supreme Court, only had between 6,000 and 7,000 "certified"
or not, not surprisingly, many people close to the issue in
the state were bitterly disappointed with the ruling. Beverly
Hills attorney Alan Isaacman, who has defended medical marijuana
defendants, said, "Patients are being treated like criminals,
doing something outside the law. The government ought not put
sick people in that position." Scott Imler, head of perhaps
the highest-profile club in the country still distributing pot,
said, "We're tired of the hiding, tired of the shame -- we wanted
to move past that. We're not prepared to go back to hiding or
to buying on the streets."
co-founder and executive director of the Oakland Cannabis Buyers
Cooperative named in the case, said, "As the facts stand, we're
banned." But he believes today's ruling opens new avenues of
litigation involving the right of patients to remain free from
effects on states that have passed medical marijuana initiatives
remained unclear. In a statement yesterday, California Attorney
General Bill Lockyer expressed regret at the decision, saying
it was "unfortunate that the court was unable to respect California's
historic role as a ... leader in the effort to help sick and
dying residents who have no hope for other relief than through
medical marijuana." Lockyer promised to review the ruling "before
any conclusions are reached or recommendations are made about
states that have passed medical marijuana laws -- Arizona, Alaska,
Colorado, Maine, Nevada, Oregon, Washington and Hawaii -- could
be affected as well, should the feds decide to act against them.
In Oregon, Leland Berger, legal counsel to the political action
committee Voter Power, says that his state's legislation was
written so narrowly, with definite limits as to weight and the
number of plants, that the ruling will have essentially "no
effect on the Oregon medical marijuana act." Berger adds that
the federal acting solicitor general arguing the government's
case before the high court admitted that any ruling will not
impact state statutes: "States can pass laws independent of
the federal government and independent of the federal Controlled
Substance Act," in Berger's words.
As to the
specific legal fallout from the ruling, few expect the federal
prisons to suddenly swell with buyers' club operators serving
hard time. (Patients are even less likely to be prosecuted:
As Dave Fratello says, the federal government is "terrified
of the horrible PR" of a criminal prosecution of patients.)
The federal government finds itself boxed in: If it opts to
criminally prosecute the clubs, it can't expect many victories
-- Hallinan's claims notwithstanding, it seems unlikely that
many juries are prepared to send people to jail for distributing
medical marijuana. And a civil injunction, once it moves to
the contempt stage, involves a jury as well. Still, should some
unlucky patient or buyers' club employee fall under federal
jurisdiction, given federal mandatory minimums, the penalties
are far harsher.
end, responsibility to break out of the current situation rests
with Congress -- whose ancient classification of marijuana as
a dangerous drug on a par with heroin allowed the court to maintain
the dysfunctional status quo. Rep. Barney Frank (D-Mass.) has
introduced a bill in Congress that would reclassify marijuana
as a Schedule II drug, meaning doctors could prescribe it, with
restrictions. But action on the part of Congress, now or in
the foreseeable future, is unlikely. Unwilling to appear "soft
on drugs," afraid to allow scientific studies or even hearings,
Congress has simply buried its head in the sand. Medical marijuana
advocate Fratello said, "There's been no electoral consequences
for Congress's cruelty for supporting the ban on medical marijuana.
They just refuse to take on the issue. They won't even hold
hearings, because they don't want to be confronted by patients."
Public pressure on Congress hasn't materialized. While three-quarters
of the public supports medical use, said Fratello, it isn't
a pocketbook issue. Only when a family member has cancer or
AIDS does the issue hit home -- and then people of all political
stripes, from the most liberal to the most conservative, support
medical use, he says.
action expected on the part of Congress, the arena moves to
the states. It will be interesting to see if state legislatures
move to legalize medical use in the face of today's ruling.
Fratello notes that two states that have legalized medical pot,
Maine and Nevada, now have bills active in the legislature to
provide for some form of state-authorized distribution -- which
might be legal under the court's narrow ruling. Fratello feels
the two bills have an "excellent chance" of passage.
also considerable wiggle room for ingenious distributors to
get around the court's ruling. Advocate Kevin Zeese notes that
advocates have been selling marijuana clones aggressively, and
that it would also be hard to forestall cooperatives sending
out "consulting gardners." Moreover, it's possible for marijuana-growing
establishments to rent out space (and expertise) to individuals
to grow a single plant or three, which might thwart a ruling
based on distribution.
grow-it-yourself alternatives have a serious problem. As buyers'
club operator Scott Imler points out, "Starting chemotherapy,
you only get a few days notice. You can't wait the five months
it takes to harvest a plant."
how patients will react to the ruling, most will probably keep
their heads down and continue trying to obtain their medicine
as best they can. San Francisco District Attorney Hallinan does
not anticipate civil disobedience or people seeking arrest.
Lindesmith lawyer Daniel Abrahamson said, "There'll be a few
demonstrations. But most patients want to get on with their
lives discreetly. They don't want to wave a flag to the feds.
If you have too high a profile, that invites federal prosecution."
Fratello thinks a more confrontational road may lie ahead. "This
case came out of open defiance of federal courts, and you may
see more," he said. One activist, who asked not to be identified,
noted there are already plans circulating on the Internet calling
for "rash disobedience." Some activists may descend on the federal
growing operation at the University of Mississippi to highlight
the hypocrisy of the federal government's growing pot but forbidding
others to do so.
ruling, it's clear, is far from the last salvo in this struggle.