WHEN COMPASSION GOES UP IN SMOKE: What The Supreme Court's Medical Marijuana Case Tells Us About Our Government

By SHERRY F. COLB

Monday, May. 21, 2001

The Supreme Court recently decided in United States v. Oakland Cannabis Buyers Cooperative that there is no "medical necessity" exception to the federal law prohibiting the production and distribution of marijuana.

The case arose in California, where the law generally makes the possession and cultivation of marijuana illegal. But the law exempts medical uses to help victims of diseases such as cancer and AIDS cope with the pain and nausea caused by illness and by treatment.

The exemption provision, called the "Compassionate Use Act," was passed by a voter initiative. The Oakland Cannabis Buyers Cooperative was formed and operated to dispense marijuana to patients who qualified for the exemption. The people who ran the Cooperative — a medical doctor, and a staff of nurses — took the view that patients who can benefit from the medical use of marijuana ought to have access to the drug.

The History of the Suit

In 1998, the Clinton Administration brought a lawsuit to stop the Cooperative from cultivating and distributing marijuana. The government claimed that an injunction was warranted because federal law prohibits the production and distribution of marijuana, and federal law trumps contrary state law.

The district judge granted the injunction, but the people who worked at the Cooperative defied the court order and continued to service their sick patients. Their actions were remarkably brave, given that they could have been criminally prosecuted for their kindness. When they disobeyed the court's injunction, the government moved for a finding that the Cooperative was in contempt of court, and the judge so held.

The Cooperative ultimately appealed the judge's decision and prevailed in the Ninth Circuit Court of Appeals, which issued a decision announcing a medical necessity exception to the federal ban on marijuana. The Supreme Court then granted certiorari and reversed.

An Immoral Exercise of Discretion by the Executive Branch

Of course, one could, and the parties did, make legal arguments respectively supporting and opposing the Cooperative's position that federal statutory and common law admit of a medical necessity exception. But whatever one thinks of the legal question at issue, one thing is certain: the case need not have come to the Supreme Court in the first place. Two separate government branches ensured it would, by deciding to exercise their discretion to press this issue.

Assume that federal law did ban marijuana irrespective of medical need. Even so, the executive branch still had the authority to decide whether or not to pursue enforcement of the law in the context of medical use. It chose to exercise that discretion in favor of enforcement.

The Justice Department thus made a judgment that of all the misconduct subject to federal law that takes place every day, what merited its attention was a medically-run nonprofit organization that distributes marijuana to sick people. The Justice Department thus began its crusade against the Cooperative at the trial court level and did not stop until it had won in the highest Court of the land.

An Immoral Exercise of Discretion by the Judiciary

Though the executive branch had decided to clamp down on the use of marijuana to alleviate suffering, the judicial branch still had other options. It could have read the common law to provide for medical necessity, for example. Declining this option, the district court, though "recognizing that human suffering could result," opted for a reading of federal law that allowed for no medical necessity exception. Then the Ninth Circuit, in a more compassionate ruling, reversed the district judge's decision. And the Supreme Court could have left it at that.

Remember that the Supreme Court grants certiorari in only one to two percent of cases. The decision to take a case thus represents more than the identification of a possible error in the lower courts. Indeed, the Court has specifically proclaimed that it does not consider itself a "court of error correction." And the Court has repeatedly refused to bend on this point — even when possibly meritorious claims of people on death row have been at stake.

So even if the Court thought the Ninth Circuit's reading of the law was erroneous, it could still have easily turned this case down. Nevertheless, the Court took the case, only to rule — unanimously — that the Oakland Cannabis Buyers Cooperative must close down its operation.

Marijuana's Symbolic Power

Why did the federal government make a priority of seeking out and obtaining this result, a mission that promised to bring about suffering and maybe death? Why did the Court decide to hear a case when, given the Justices' views of the merits, choosing to hear it meant perpetuating the pain of many terminally ill patients?

The answer lies in the symbolic power of marijuana, a power that, for many public officials, seems to close down the capacity for empathy or "compassionate conservatism," as it were. Oddly, this power holds sway even over those officials, like former President Bill Clinton and Associate Justice Clarence Thomas, who have admitted using marijuana recreationally in the past.

Marijuana has become a potent symbol of "drugs," and the federal government has declared war on "drugs." Our national government is heavily invested in the proposition that drugs are bad, and marijuana has long been in the class of "drugs" (as opposed to medications).

Suppose that drugs really are an unadulterated evil and destructive force. Even if this is true, many have demonstrated convincingly that the war on drugs is utterly futile and counterproductive.

Proponents of the drug war respond that if it were counterproductive to prohibit murder, there would nonetheless be honor in condemning what is morally wrong, regardless of the consequences. Suppose that this argument, too, is valid. Would anyone suggest that people who distribute marijuana to sick people to reduce their pain ought to be condemned?

Specifically, would anyone propose that the doctor and nurses working at the Buyers Cooperative behaved in a way that is morally wrong or worthy of punishment? To its credit, the Court did not make this argument and neither did the concurrence.

Forgetting the Lessons of Griswold

The argument the concurrence did make was an interesting one — but it did not go far enough. Justice Stevens, joined by Justices Souter and Ginsburg, wrote separately to note that this case only decides that those who produce and distribute marijuana for medical use have no defense under federal law. It leaves open — as "a difficult issue that is not presented here" — the question whether "the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering."

We should excuse patients in need of marijuana for not rejoicing at this news. First, the opinion suggests only they might not have to go to prison if they are caught in possession of marijuana, not that they will not.

Second, it is not apparent how patients are supposed to come into possession of marijuana if the law succeeds, as it is presumably meant to do, in preventing anyone from producing and distributing the drug. Starvation and extraordinary suffering may thus turn out to be the only options left to many patients.

The Court understood this point well in Griswold v. Connecticut — in which it held that distributors of contraceptives must not be prosecuted so that the privacy right to use them in one's home could be vindicated. Yet the concurring Justices have apparently forgotten the logic in this case.

Even if the right belongs to the individual user (whether of contraceptives or medical marijuana), the distributor is an essential prerequisite to the exercise of that right, and one who is also well situated to go to court and vindicate it. In this case in particular, it was obviously easier for the Cannabis Cooperative to go to Court, than for terminally ill patients to devote their limited energies to doing so.

But then Griswold was decided in 1965, and it is unclear how the case would come out if presented for the first time today. Perhaps our current Supreme Court would approve of injunctions prohibiting the sale of contraceptives. Perhaps it would find further that police — who, it recently held, may arrest drivers who fail to wear a seatbelt — may also rifle through a married couple's bedroom for telltale signs of contraceptive use.

Would the "liberal" Justices express outrage? Perhaps they would concur instead, and simply make clear that while distributors of contraceptives can be jailed, a couple using them might have a defense if criminally prosecuted.

In talking with people from other "civilized" countries, I often encounter amazement at the puritanical nature of the United States. People cite our drug policies and attitudes toward sexuality. It becomes increasingly difficult to defend our nation from such critiques given legislative, executive, and judicial commitments to stamping out the "evil" of drugs — even when what is stamped out is the right of our most vulnerable citizens to obtain temporary respite from debilitating, and even terminal, illness.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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