March 28, 2001 (Washington) -- Can patients get access to marijuana to fight the ravages of disease, even though it's illegal to possess the drug under federal law? That question was argued before the U.S. Supreme Court on Wednesday.
At issue is whether so-called buyers' clubs have the right to provide pot to those who are seriously ill and suffering.
Several Supreme Court justices seemed skeptical.
"That's a vast expansion [of] any necessity defense I've ever heard of," Justice Antonin Scalia said. "It was kind of a blanket medical necessity," said Justice Sandra Day O'Connor in reference to an appellate decision supporting the marijuana users.
The current court battle began in California where, in 1996, voters authorized growing and possessing marijuana for medical use. That "compassionate use" justification put the state on a collision course with the federal government's antidrug laws. Eventually, the Justice Department filed a civil suit to shut down a buyers' club in Oakland, Calif., in 1998.
The Oakland Cannabis Buyers' Cooperative, with some 8,000 members, countered that even though it might be technically against the law to distribute marijuana, doing so was essential to those who would otherwise die, go blind, or suffer severe pain.
Despite such reasoning, a federal district court issued a preliminary injunction to stop the buyers' clubs from growing or distributing medical pot. Later, however, an appellate court ruled that the lower court could consider medical necessity to modify its injunction. That has permitted a handful to acquire marijuana legally under tight guidelines.
Meanwhile, the Justice Department appealed to the U.S. Supreme Court. Acting Solicitor General Barbara Underwood argued before the court that the FDA concluded that there is "insufficient reason to think [marijuana's] safe and effective."
In fact, a law passed by Congress in 1970 placed marijuana in the most restricted category for drugs.
If the buyers' club is ultimately shut down, people will resort to getting marijuana on the street, according to Gerald Uelmen, who handled the cooperative's case.
"We allow physicians to prescribe narcotic drugs, to even prescribe cocaine ... because we recognize there are some people who will get a medical benefit," he says.
Medical marijuana backers say their movement is growing. Voters in Alaska, Colorado, Maine, Nevada, Oregon, and Washington have passed measures similar to the one in California.
"This is not about legalizing marijuana, this is about making medical necessity [of marijuana] available to patients," says Jeff Jones, the founder of the buyers' club and the main defendant in the case.
Yet, others have a different view.
"We are a compassionate society. No one wants to deprive sick people of something that could be really helpful to them. But we have good evidence that sick people are being harmed by using marijuana," says David Evans, who represents a coalition of more than 50 antidrug groups that filed a brief with the Court supporting the government's side.
Others argue that approving medical uses for an otherwise illegal product sends mixed messages to America's kids.
"The availability is teaching our children that marijuana is a medicine, and therefore, it can't be dangerous, it must be safe," says Sue Rusche, director of the National Families in Action.
Still, there are those who insist they would have suffered or died without marijuana.
"If it weren't for medical cannabis increasing my appetite, ... I wouldn't be here speaking to you today," testified Mike Alcalay, MD, an AIDS patient who's also the medical director of the Oakland cooperative.
Supporters of the Oakland Cannabis Buyers' Cooperative include the California Medical Association and the California Attorney General.
According to The Associated Press, White House spokesman Ari Fleischer says President Bush supports a federal ban on marijuana while endorsing the right of states to pass referendums like California's. But overall, Fleischer says, Bush opposes medicinal marijuana.
Two years ago, the Institute of Medicine issued a qualified endorsement of medical marijuana, saying it had potential value as a treatment for the wasting disorder associated with HIV, but also acknowledged that pot smoking increased the risk of cancer.
Currently, there are still eight people who hold FDA prescriptions to use medical marijuana under a revoked compassionate use program. One of those is Elvy Musikka of California, who receives 10 marijuana cigarettes daily from the government to control her glaucoma.
Efforts to keep the drug from Musikka and others who have been prescribed it are "unreasonable, arbitrary, and capricious," she says.