Arguments before the Supreme Court on whether states may legalize the use of marijuana for medical purposes

Noah Adams, Robert Siegel, Nina Totenberg
National Public Radio (US)
Wednesday, March 28, 2001


From NPR News, it's ALL Things Considered.  I'm Noah Adams.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

Today the United States Supreme Court stepped in to the question of medical marijuana.  The justices heard arguments in a case testing a California law that allows the distribution of marijuana to patients who say they need it to relieve pain and suffering.  California is one of nine states that have passed laws legalizing the medical use of marijuana.  NPR's Nina Totenberg reports.

NINA TOTENBERG reporting:

When Californians went to the polls in 1996, they ignored dire warnings from presidents and police chiefs, Democrats and Republicans, and by a whopping 56 percent margin the voters improved an initiative to legalize the medical use of marijuana.  The federal government, rather than prosecuting people who use marijuana for medical purposes, went to court to block the legal distribution of the drug by so-called cannabis pharmacies.  The government argued that the nation has a national scheme of laws that govern the approval of drugs as medicine and a national scheme to enforce laws against illegal drugs.  Congress has classified marijuana as a so-called schedule one controlled substance.  It may not be manufactured or distributed by anyone or prescribed by a doctor until and unless at some time in the future the government deems it to be a safe and effective drug for medical purposes.

In the lower courts, the federal government first won and then lost in part on appeal.  A federal judge finally permitted the Oakland Cannabis Cooperative to provide marijuana to people suffering from a serious medical condition who have no alternative to cannabis for relief of symptoms and who have a recommendation from a doctor.  The government appealed to the US Supreme Court, where the case was argued today.

On the steps of the courthouse, there was a mob scene of competing interest groups and a lot of individuals who claimed to be alive because of marijuana.  One of those was Dr.  Mike Alkalave( ph ), a medical director of the Oakland Cannabis Cooperative.  He said that he, like many others who suffer from AIDS, has tried everything else to control the nausea and vomiting of his disease and its treatment and nothing works, not even the legal cannabis pill called Marinol; nothing, that is, except smoked marijuana.

Dr.  MIKE ALKALAVE ( Oakland Cannabis Cooperative ): One smoke.  I'm not talking about getting stoned.  I'm just taking a small amount and that gets rid of my nausea and queasiness, keeps me alive, keeps my appetite up and keeps my pills down.

TOTENBERG: There is, in fact, precious little in the way of blind and double-blind studies about the effectiveness of marijuana, in part because the government has refused to provide the drug for studies.  A federally commissioned Institute of Medicine survey of the existing data concluded that marijuana is moderately well-suited for controlling the vomiting and nausea associated with cancer treatments and AIDS wasting.  Still, many, like drug prevention activist Sue Rushi( ph ), say that allowing the use of a untested and unregulated drug is dangerous.

Ms.  SUE RUSHI ( Drug Prevention Activist ): This is an unapproved, unsafe, ineffective drug.  And until the FDA finds out otherwise, it should not be available for anybody.

TOTENBERG: Inside the courtroom, acting Solicitor General Barbara Underwood made that every point to the justices, some of whom wondered aloud about all the antidotal evidence to the contrary.  Justice Ginsburg pointed to examples in the briefs, citing the experience of cancer patients for whom nothing else worked.

'That is not an uncommon experience and has been going on for years,' she observed.

Justice Stevens: 'Should we assume there are no people for whom this is a medical necessity?'

Answer: 'There are ways to win approval of a drug, and the FDA doesn't give its approval unless a drug can be shown to be safe and effective.'

Justice Kennedy: 'Why should the federal courts enjoin a state law? Why not just say to federal prosecutors, "If you want to prosecute these people, go ahead"'?

Answer: 'The federal judge who did that would be interfering with the federal government's choice on how to enforce a law, and a court cannot do that.'

Justice Souter: 'Isn't is true that it would be very difficult to get a guilty verdict in a jury trial, and that's the reason you've gone this route, where violators can be punished for contempt without a jury trial'?

Answer: 'They are still entitled to a jury trial.'

'No, they are not,' countered Gerald Ullman, the lawyer for the Oakland Cannabis Club, in rebuttal.  'Indeed, in this very case, the defendants were found guilty of violating the judge's first order,' he said, 'before it was reversed on appeal; and there was no jury trial.'

Ullman argued that even if the California law is written broadly, the lower court order is very limited because it requires anyone getting marijuana to show he has a serious disease, that no alternative works and that a doctor has recommended the use of the drug.  But Ullman had a hard time selling that argument.

Justice Kennedy: 'This exception doesn't sound limited to me at all.'

Justice O'Connor: 'It sounds like a blanket exception.'

Justice Ginsburg: 'The California initiative, seems to me, to be irrelevant to your argument.  Aren't you arguing that the medical necessity exception to the federal drug laws should be available in any state?'

Answer: 'Yes.'

Justice Scalia: 'So it would be available for other drugs, too.'

Answer: 'Yes, but that would be a very risky proposition because you'd have to prove that you'd tried all the other drug therapies and they didn't work.'

Justice Scalia: 'That's an easy gamble.  A jury vs.  the Grim Reaper? I'll take the jury any day.'

Justice Kennedy: 'You're asking us to hold that this defense exists in the broadest sweeping terms without any specific individual or case in front of us.

Answer: 'That's our position, too, that you shouldn't enjoin this law but wait for a prosecution.'

The Clinton administration didn't want to prosecute, though, and neither, apparently, does the Bush administration.  Just why may be seen in a statement today by President Bush's press secretary, Ari Fleischer.  'The president,' he said, 'respects states' rights to pass referendums like California's, but the president is opposed to the legalization of marijuana for medical purposes.' A decision is expected by summer.  Nina Totenberg, NPR News, Washington.

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