A Missed Opportunity: Medical use of Marijuana is Legally Defensible Case Note: United States v. Oakland Cannabis Buyers
| Author | James D. Abrams |
| Pages | 883-915 |
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Congress' "war on drugs" has severely undermined the acceptability of the medical use of marijuana,1 even though marijuana has long been used for medical purposes.2 In fact, marijuana use was included in the United States Pharmacopoeia until 1941.3 The decline in the use of marijuana for medical purposes can generally be attributed to the development of more reliable synthetic drugs4 and to criminalization.5
The federal government encouraged the states to pass rigid marijuana laws and intervened to restrict marijuana use for recreational purposes after most states had passed laws restricting marijuana.6 In 1937, Congress passed the Marijuana Tax Act which prohibited the use of marijuana as an "intoxicant and restricted its use as a medicine."7 Between 1937 and 1956, the federal government increased the quantity and severity of restrictionsPage 884 on marijuana.8 Finally, in 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act.9 Congress acted to combat our "nation's growing drug problem."10
The Comprehensive Drug Abuse Prevention and Control Act (hereinafter the "Act") was designed to deal comprehensively with drug abuse by: (1) preventing drug abuse and rehabilitating users; (2) providing more effective means of law enforcement; and (3) providing for an "overall balance scheme" of criminal penalties for drug offenses.11 The Act's Title II was entitled "The Controlled Substances Act" (hereinafter "CSA").12 The CSA provides five schedules for classifying controlled substances13 and is at the heart of the medical use of marijuana debate.
The most restrictive schedule of the CSA is Schedule I.14 The criteria for substances listed in Schedule I include a "high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision."15 Unlike substances on Schedules II through V, that can be dispensed for medical use, Schedule I substances cannot be distributed except as part of "a strictly controlled research project that has been registered with the Drug Enforcement Administration ("DEA") and approved by the Food and Drug Administration."16 Congress accepted the Assistant Secretary for HealthPage 885 and Scientific Affairs' recommendation that marijuana be included in Schedule I until more information was obtained as to the extent to which marijuana should be controlled, since it was a matter of diverse opinion.17
The CSA does provide a procedure for "moving drugs from one schedule to another by petition to the Attorney General" of the United States.18 In 1972, the National Organization for the Reform of Marijuana Laws (NORML) began efforts to get marijuana rescheduled "so that it could be used in medicine."19 However, the DEA, to which the Attorney General has delegated the power to rule on rescheduling petitions, stopped the rescheduling efforts in a manner that "lacked good faith" in complying with statutory requirements.20 After twenty-two years of attempting to get marijuana rescheduled, the court denied the last petition for rescheduling in February 1994.21
While the rescheduling efforts did not produce the desired result, there is clear evidence that marijuana has legitimate medical uses.22 In recognition of these facts, the people of the State of California voiced theirPage 886 collective opinion about medical use of marijuana.23 In the November 1996 statewide election, 56% of voters passed Proposition 215, the "Medical Use of Marijuana" initiative.24 Known as the "Compassionate Use Act" (the "CUA"), this act "makes it legal under California law for seriously ill patients and their primary caregivers to possess and cultivate marijuana for use by the seriously ill patient, if the patient's physician recommends such treatment."25
A little more than a year after the passage of the CUA, the United States filed six separate suits in the same district court against a number of "medical cannabis dispensaries" seeking to enjoin them from violating the CSA.26 After analysis of a medical necessity defense and substantive due process, inter alia, the court concluded that the federal government would likely prevail at trial on the merits against the "dispensaries" and, because the Supremacy Clause of the United States Constitution controls, the requested injunctive relief was granted.27
Defendants appealed the cases to the United States Court of Appeals for the Ninth Circuit after attempts to modify the district court's injunction failed.28 On appeal, the Court of Appeals for the Ninth Circuit remanded the cases directing the lower court to exercise its broad "equitable discretion" to formulate appropriate injunctive relief.29 The Court of Appeals required the lower court to consider the "public interest" in fashioning injunctive relief and required the lower court to consider a medical necessity exemption.30 In these requirements, the Court of Appeals recognized the Hobson's choice left to the seriously ill patient as a result of the lower court's ruling.31 The United States petitioned the Supreme Court for certiorari "to review the Court of Appeals' decision thatPage 887 medical necessity is a legally cognizable defense to violations of the [CSA]."32 The Supreme Court's decision in that case is the subject of this article.
The Supreme Court's decision is more significant for what it does not address than for what it does. The decision is of critical significance to seriously ill patients whose rights are left in doubt as a result of the approach adopted by the Court in this decision. For example, the Supreme Court left for another day whether the CSA's over-broad reach preempts state law. Because federalism "imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law"33(particularly when "a State [has] chosen to 'serve as a laboratory' in the trial of 'novel social and economic experiments without risk to the rest of the country'"),34 the preemption question was important in the instant case and should have been addressed by the Court.
Further, the Court left undecided the question of the exclusively intrastate, non-commercial use of marijuana by the seriously ill patient, a decision seriously at odds with its recent Commerce Clause jurisprudence.35 Finally, the Court did not actually resolve the question of a patient's right to use the medical necessity defense.36
Beyond these skirted issues, the case is also troubling because the Court's narrow holding and over-broad language is likely to lead to confusion. An individual who may still have a legal right to use marijuana may be denied this right by such confusion. The liberty interest involved and its relationship to fundamental rights need to be further delineated by the Court.
This case note will be presented in four sections. The first section of the case note will focus on the relevant legal framework within which the case might have been decided. The second section of the case note will present a discussion of the case itself. The third section of the case note will provide an extensive analysis of the case in light of the legal framework provided in the first section. This section will analyze the Court's choice of making this case one of statutory interpretation, and the resulting problems with the Court's analysis. Additionally, the legal issuesPage 888 implicated in this case, that the Court chose to reject or to ignore, will be discussed. Finally, the fourth section of the case note will deal with the implications of the case on the future development of law in the area of medical use of marijuana. This section will provide an understanding of how the rights of seriously ill patients to be pain-free and allowed access to appropriate medical care, will be addressed in the future.
The relevant statutes at the heart of the case are the Controlled Substances Act37 and California's Compassionate Use Act.38 However, the Court's application of the avoidance doctrine and the "last resort rule"39 are central to the Court's analysis of the case, for it is the common law necessity defense that is the basis for the Court's narrow holding.40Constitutional questions that were not discussed by the Court but are indeed relevant to this case include the Supremacy Clause's preemption of state law,41 the Commerce Clause,42 and fundamental liberties.43 Finally, the Court's broad equitable discretion to grant injunctive relief was not sufficiently resolved by this case.
The CSA provides the authority for the Justice Department to control drug abuse44 and makes it unlawful to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense any controlled substance" except as authorized by the CSA.45 The CSA also makes it a crime to possess any controlled substance except as authorized.46 Drugs are classified by schedule according to their addictive properties and potential for abuse.47
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The most restrictive schedule of the CSA is Schedule I.48 Criteria for placing substances on Schedule I include "a high potential for abuse . . . no currently accepted medical use in treatment in the United...
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