In a largely symbolic slap in the face to medical marijuana users and providers, the Supreme Court ruled unanimously on Monday that the Oakland Cannabis Co-op could not mount a medical necessity defense against federal marijuana distribution laws.
The Supreme Court, however, did not overturn the medical marijuana law enacted by voters in California, nor did it challenge the legality of any other state laws allowing medical marijuana. Those laws were not at issue and remain on the books. The most striking practical effect of the ruling is that medical marijuana patients who had relied on "compassion clubs" or co-ops to obtain their marijuana will be forced to turn to less desirable alternatives.
"This is a disappointing decision because tens of thousands of seriously ill patients will find it more difficult to obtain their medicine," said Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws (NORML). "Patient support groups have provided a safe, secure environment for medical marijuana users, but now they will have to grow their own or turn to the black market."
But not all of them, at least not yet. The San Francisco Examiner reported on Tuesday that distribution centers in the city remained open for business. Long lines of medical marijuana patients formed outside the Cannabis Helping Alleviate Medical Problems (CHAMP) center, the newspaper noted.
"The fact remains that there are sick and dying people out there who need their medicine and need this service," said Sister Rosemarie, a disciple at St. Martin de Porres House who works at another medical marijuana distribution point, the San Francisco Patients' Resource Center. "We will remain open to serve our patients."
But for the high court, legislative fiction trumped medical and social reality. Marijuana has "no currently accepted medical use," wrote Justice Clarence Thomas. Why not? Because Congress says so. Congress's ideological determination outweighed a mounting body of medical and scientific evidence from doctors, patients, and even the government-commissioned 1999 National Academy of Sciences' Institute of Medicine report, which concluded marijuana can be effective in treating pain for some terminally ill patients. That report also concluded that legalizing marijuana for medical use would not lead to widespread abuse.
"In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a government research project)," said the Thomas opinion. "It is clear from the text of the act that Congress has made a determination that marijuana has no medical benefits worthy of exception. Unwilling to view this omission as an accident, and unable in any event to override a legislative determination manifest in a statute, we reject the cooperative's argument."
"This is like the Flat Earth Society insisting the world is flat," NORML's Stroup told DRCNet. "Congress has taken the same approach to marijuana and the Supreme Court has agreed that marijuana is not medicine. They can say that, but that doesn't change the fact that tens of thousands of patients find it the only method of easing pain and suffering. It's an act of ignorance," said Stroup.
But for Stroup and other observers, disappointment was tempered by the knowledge that essentially little has changed. Marijuana distribution for any reason has long been prohibited under federal law. It remains so. But if the federal government wishes to enforce the marijuana laws against medical marijuana providers and patients, it will have to send in the Drug Enforcement Administration to do so, and that could lead to political problems.
"The feds don't have the resources or the mandate to enforce these laws," said the Marijuana Policy Project's Chuck Thomas. "The DEA is only supposed to go after large traffickers. They would have to go to Congress and say 'we need a 100% budget increase to go after these medical marijuana patients.' But first and foremost, this does not overturn existing medical marijuana laws, nor does it prevent other states from passing similar laws," Thomas added. (The Marijuana Policy Project maintains a list of state marijuana laws at http://www.mpp.org/statelaw/ online.)
"The significance of this is that although the federal government can still arrest patients," Thomas added, "99% of all marijuana arrests are made by state and local officials, so we can still protect 99% of all medical marijuana users by changing state laws."
In comments to the Chicago Tribune this week, Kevin Zeese, president of Common Sense for Drug Policy, pointed out that, "Caregivers for the seriously ill will continue to provide medical marijuana, thus the federal government will have to enforce the law before juries in states where over 70% of the population voted for medical marijuana. The court's decision will heighten the conflict around medical marijuana," Zeese predicted.
Jeff Jones will help turn Zeese's prediction into reality. Jones, executive director of the Oakland Cannabis Buyers Cooperative, one of the plaintiffs in the case, told the Oakland Tribune the "heavy-handed and misguided" decision was only the beginning. "We're not giving up," said Jones, adding that his group would continue to litigate medical marijuana issues in the federal district court. "Common sense tells us this is a therapeutic substance," he said.
The Oakland cooperative had provided medical marijuana to more than 2,000 patients from 1996 to 1998, when it quit distributing it to patients while its case was pending. The co-op remains open for business, however, offering referrals, a meeting space, and non-cannabis related services.
Stroup sees a silver lining in the adverse ruling. "The American people overwhelmingly support medical marijuana and were disappointed in the decision," he maintained. "If we can find creative ways to channel this disappointment, then we can turn this short-term setback into a long-term victory. It's been more than 30 years since Congress scheduled marijuana, and this decision could force Congress to look again and perhaps arrive at a different conclusion. In the final analysis, that is the lesson of this decision," Stroup argued. "We should not be looking to the courts for relief, we have to do this the old-fashioned way; we have to get sufficient political support to get Congress to reschedule marijuana."
MPP's Thomas is equally undistracted. "Our strategy remains the same," he told DRCNet. "Pass state laws and keep promoting H.R. 1344, the States' Rights to Medical Marijuana Act, sponsored by Rep. Barney Frank (D-MA)." That bill would prohibit the federal Controlled Substances Act from applying to medical marijuana, in any state where medical marijuana is legal. It would also transfer medical marijuana from Schedule I to Schedule II.
"But regardless of what Congress does," said Thomas, "people need to understand that they can continue to pass state laws so that patients can grow and use their medicine at home."