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Justice to Supreme Court: No medical exception to drug ban

WASHINGTON (BP)–An exemption to the federal ban on marijuana distribution should not be allowed for patients who claim it is medically necessary, the Department of Justice told the U.S. Supreme Court in oral arguments March 28.

Such a “medical necessity defense” would “undermine the procedures of Congress” when there are legal drugs available as alternatives to marijuana, acting Solicitor General Barbara Underwood told the justices. In fact, the U.S. government contends there should be “simply no medical necessity defense at all,” she said.

The arguments in United States v. Oakland Cannabis Buyers’ Cooperative marked the first time the Supreme Court has reviewed a court decision on a state’s approval of medical marijuana.

In 1996, California voters approved Proposition 215, thereby allowing seriously ill patients and those who primarily care for them to possess and manufacture marijuana for medical reasons with a doctor’s recommendation. Numerous private groups, known as “cannabis clubs,” were established to provide the drug to patients.

The federal government sought to shut down the clubs and won in district court, where a judge blocked the groups from cultivating or distributing marijuana. The U.S. Ninth Circuit Court of Appeals, however, disagreed with the federal judge last year. The appeals court returned the case to the federal judge, who agreed with the request of the “cannabis clubs” and ruled marijuana could be distributed when it is medically necessary.

At the request of the Department of Justice, the Supreme Court voted 7-1 in August to block the federal judge’s order.

Gerald Uelmen, the lawyer for the Oakland club, described marijuana as a “life-saving drug,” citing AIDS patients who need to keep their weight up as examples of those who need the illegal substance. For such patients, all alternatives “have been tried and failed,” he said.

Underwood, however, said the federal government is acting “on the assumption there are no such people” who need marijuana. The drug has not passed screening by the Food and Drug Administration and has not been found to be “safe and effective,” she said. Marinol, an extract containing marijuana’s primary active ingredient, has been on the market for about 15 years, she told the justices.

Anecdotal reports of success are a basis for research but not for FDA approval of a drug, she argued.

Associate Justice Sandra Day O’Connor described the Ninth Circuit’s ruling as creating a “kind of blanket” exception to the Controlled Substances Act, the federal law prohibiting the manufacture and distribution of marijuana.

It is “not a blanket defense” in that each patient must demonstrate he needs it and has “no reasonable alternative,” Uelmen responded.

A sizable portion of the arguments focused on the decision of the federal government to block the activity of the marijuana clubs by a civil suit instead of a criminal prosecution requiring a jury trial.

Afterward, Robert Maginnis of the Family Research Council appeared encouraged by the skepticism some of the justices voiced toward the arguments of the marijuana club. When public policy is being made, as it is in this case, policy shapers “depend on science, not anecdotes,” Maginnis said. He said there are far better drugs and called marijuana a “bottom-rung type of drug.”

Maginnis voiced a concern also expressed by the Southern Baptist Ethics & Religious Liberty Commission. In a written statement, he said the “medical marijuana lobby is nothing more than a front for the drug legalization movement.”

Barrett Duke, the ERLC’s vice president of research, has said many of those supporting the medical use of marijuana desire the “complete decriminalization” of the drug. Marijuana is not harmless but a “mind-altering drug” that provides a gateway to addiction, he said. “There is a good reason marijuana is illegal — it has a history of destroying lives,” Duke said.

FRC filed a friend-of-the-court brief in support of the federal government. Among those filing briefs in behalf of the marijuana club were the ACLU, the California Medical Association and the National Organization for Reform of Marijuana Laws.

Only eight justices heard arguments in the case. Associate Justice Stephen Breyer recused himself because his brother, Charles, was the federal judge who ruled in the case.

An opinion is expected before the court adjourns this summer.