U.S. Justices to Weigh Medical Marijuana Laws

The Supreme Court announced Monday that it will decide the fate of the medical marijuana laws in California and eight other states.

The case, to be heard early next year, poses a clash between the strict federal laws against distributing marijuana and California’s limited move to legalize its use for those who are seriously ill.

In August, the high court tipped its hand by issuing an emergency order that halted the legal distribution of marijuana by a cannabis club in Oakland.

Usually, the justices intervene in a pending dispute only when they are convinced that the lower court is wrong. In this case, the federal appeals court based in San Francisco had said that it should be legal to give marijuana to patients whose medical need is apparent.

The justices now will decide formally whether there is a “medical necessity” exemption to the zero-tolerance federal drug policy.

Four years ago, California voters approved Proposition 215, a measure that authorized patients or their caregivers to get marijuana if they had a doctor’s recommendation.

Advocates of the Compassionate Use Act--who say marijuana is effective in relieving pain and nausea in some patients who suffer from cancer or AIDS--continued Monday to express optimism, despite the latest in a series of court actions against them.

“We would argue that medical necessity, an ancient defense that goes back centuries in Anglo jurisprudence, continues to exist,” said Robert A. Raich, attorney for the Oakland Cannabis Buyers’ Cooperative. “Patients have no other effective therapy . . . and they have a right to access to that medicine.”

Raich said that however the Supreme Court rules, the validity of patients’ rights under Proposition 215 will not be affected. The high court indicated that it will be ruling only on whether medical necessity is a valid defense to distribution of marijuana under federal laws, he said.

Additionally, Raich said, the club’s legal team will argue that--to be consistent with its previous positions on states’ rights--the high court should respect the decision of California voters in approving the Compassionate Use Act.

Federal officials, however, have ignored such arguments and called for the narrowest reading of federal drug laws. They insist that the state had no power to waive federal narcotics laws, which make it a crime to grow and distribute marijuana. And they add that marijuana has “no currently accepted medical use.”

Despite this stark dispute, the U.S. Justice Department did not choose to challenge violations of the law simply by prosecuting individual users. Instead, federal lawyers sued six Northern California cannabis clubs and sought court orders making their operations illegal.

U.S. District Judge Charles Breyer agreed that the state law “directly conflicts with federal law” and that in such situations, the federal power prevails.

But last year, the U.S. 9th Circuit Court of Appeals disagreed in part. It said that the law must make an exception for “seriously ill individuals who need cannabis for medical purposes.” Its opinion referred to this as a “medical necessity exemption” to the federal drug laws.

In July, Breyer revised his order to allow the Oakland club to give marijuana to those who will “suffer imminent harm” if they are denied the drug.

The Justice Department reacted quickly and asked the Supreme Court to intervene on an emergency basis. On an 8-1 vote, the justices issued an order that prohibited the legal distribution of marijuana at the Oakland club.

Only Justice John Paul Stevens dissented, saying that the “orderly enforcement of federal criminal statutes” was not threatened by the medical use of marijuana.

After winning the emergency order, U.S. Solicitor General Seth Waxman petitioned the court and asked for a ruling that reversed the liberal standard set by the 9th Circuit. Distributing marijuana legally, even on limited basis, will “promote disrespect and disregard” for the drug laws, he said.

The court granted his appeal Monday in the case of U.S. vs. Oakland Cannabis Buyers’ Cooperative, 00-151. Justice Stephen G. Breyer said he was recused from the case because his brother was the judge who issued the original order. If the justices rule for the government, their decision would mean that the distribution of marijuana is illegal, regardless of the circumstances.

Such a ruling would not necessarily mean the government would prosecute individuals who possessed marijuana for personal medical use. However, it would limit the means of distributing the drug to those who need it.

Previous legal actions have failed to stem the growth of the Oakland club and other medical marijuana distributors operating in the Bay Area. The membership of the Oakland club has expanded from 2,200 to about 7,000 in the last two years. However, Raich said, no marijuana currently is being distributed.

Now, he said, the cooperative is issuing identification cards only to patients who have a verified recommendation for medicinal marijuana from a physician. Those patients then are referred to medical marijuana providers that remain open.

Seven or eight such providers are operating in San Francisco, and another is scheduled to open in January.

Randi Webster, a director of the Patient Resource Center in San Francisco, estimates that several thousand patients in the area have identification cards that entitle them to use medical marijuana.

Dennis Peron, a chief author of Proposition 215, had his Cannabis Buyer’s Club in San Francisco shut down by the state attorney general two years ago. He says he now is operating a medicinal marijuana growing cooperative on a 20-acre farm in Lake County.

There are 50 members who grow their own medicinal marijuana, he said.

“The initial buy-in is $100,” he said. “You need a letter of diagnosis from a doctor, and you sign a form saying we are your primary caregiver.”

Besides California, eight states have adopted medical marijuana laws. They are Alaska, Arizona, Hawaii, Maine, Oregon, Colorado, Nevada and Washington.

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Savage reported from Washington and Reiterman from Northern California.