SUBJECT Medical necessity, marijuana Question(s) presented: Whether the
Controlled Substances Act, U.S.C. 801 et seq., forecloses a medical
necessity defense to the Act's prohibition against manufacturing and
distributing marijuana, a Schedule I controlled substance.

As a teenager, Jeff Jones watched as his father grew sicker and sicker.
Wayne Jones underwent the typical cancer treatment -- chemotherapy,
prescription drugs, radiation -- and he suffered from the typical side
effects -- weakness, nausea, weight loss. If the conservative, Christian
family from South Dakota had known in 1988 about the medicinal benefits of
marijuana, they just may have tried it.

A few years after Wayne Jones died, Jeff Jones learned that marijuana can
alleviate the pain that cancer patients feel. The plant can also whet their
lost appetites. With that information, Jones left Rapid City, S.D., and
moved to California to open the Oakland Cannabis Buyers' Cooperative. The
Cooperative serves more than 7,000 people, providing them with support
groups, massage therapy, a resource center and legal hemp products.

Until August 2000, the Cooperative also provided marijuana to patients with
doctors' notes. That service was considered legal under California
Proposition 215, which was passed overwhelmingly by voters in 1996. Eight
other states, in addition to Washington, D.C., have passed medicinal
marijuana laws: Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon
and Washington.

"I thought this is the worst thing you could ever do, be involved in
marijuana," Jones said, reflecting on his conservative background. "You'd
be surprised what's really the truth. The truth is that they can get up
every morning and go to work."

His father couldn't do that.

"I remember sitting with him in the last days of his life and more often
than not, I was listening to him puking," Jones said.

Now, he sees people go to chemotherapy treatments smiling. They can hold
down food, and they just aren't as weak as his father was.

In January 1998, the federal government filed suit against the Cooperative,
claiming that the use, manufacture and distribution of marijuana is illegal
under the Controlled Substances Act, a federal law. And, according to the
Federal Food, Drug and Cosmetic Act, the Food and Drug Administration must
determine whether a drug meets certain medicinal standards. Marijuana, a
Schedule I controlled substance, has not been declared safe by the FDA.

In May 1998, U.S. District Judge Charles Breyer, the brother of U.S.
Supreme Court Justice Stephen Breyer, issued a preliminary injunction,
closing the Cooperative.

"A state law (that) purports to legalize the distribution of marijuana for
any purpose, however, even a laudable one, nonetheless directly conflicts
with federal law," Breyer wrote.

The Cooperative, however, violated the court's order and distributed marijuana.

Then, in what was considered an unusual strategy to shield the Cooperative
from federal lawsuits, the Oakland City Council in August 1998 proclaimed
the Cooperative a federal agency.

The strategy didn't work.

In October 1998, Breyer authorized U.S. Marshals to close the Cooperative
despite its request for a modified injunction allowing marijuana
distribution to those who medically need it.

The following September, the 9th Circuit Court of Appeals reversed in a per
curiam opinion, writing that medical necessity could be used as an
exemption from federal drug laws.

"OCBC presented evidence that there is a class of people with serious
medical conditions for whom the use of cannabis is necessary in order to
treat or alleviate those conditions or their symptoms," the court wrote.
"The government, by contrast, has yet to identify any interest it may have
in blocking the distribution of cannabis to those with medical needs,
relying exclusively on its general interest in enforcing its statutes. It
has offered no evidence to rebut OCBC's evidence that cannabis is the only
effective treatment for a large group of individuals."

The appeals court instructed the lower court to rethink its decision not to
modify the injunction.

Reconsidering the case in July 2000, Breyer ruled that the Cooperative
could distribute marijuana to the seriously ill. The following month, the
U.S. Supreme Court, in a 7-1 ruling, issued an order preventing the
Cooperative from distributing marijuana while the federal government
pursued its appeal to the high court. (Justice Stephen Breyer recused
himself from the case.)

"Ever since Bill Clinton made that comment about not inhaling, he's been
running away from it," said Robert A. Raich, an attorney representing the
Cooperative, who believes that the government's suit is an attempt to
appear tough on drugs. "Even if that means many patients are going to die,
or stay in wheelchairs, or go blind."

U.S. Solicitor General Seth P. Waxman wrote in the government's petition
for certiorari to the U.S. Supreme Court that allowing the distribution of
marijuana for medicinal purposes hinders the government's ability to
enforce federal drug laws.

"Unless the CSA can be enforced ..., drug traffickers, acting under the
guise of 'medical necessity,' will be able to manufacture and distribute
marijuana with impunity," Waxman added.

Waxman also wrote that in 1998, Congress declared that Schedule I drugs,
including marijuana, are unsafe and not acceptable for medical use.

But the government doesn't always know best, said Robert Kampia, executive
director of the Marijuana Policy Project in Washington, D.C.

"We believe that a doctor and a patient know best in determining the best
treatment option for the patient," Kampia said.

Jones added: "Like a trapped rat in a corner, these patients are not going
to give up and die."

On Nov. 27, 2000, the U.S. Supreme Court granted certiorari in the case.

Attorneys In This Case:

For U.S.: U.S. Solicitor General, U.S. Department of Justice, Washington,
DC 20530

For Oakland Cannabis Buyers' Cooperative, et al.:

Annette P. Carnegie, Morrison & Foerster LLP, 425 Market Street, San
Francisco, CA 94105-2482

Robert A. Raich, 1970 Broadway Suite 1200, Oakland, CA 94612

Gerald F. Uelmen, Santa Clara University School of Law, Santa Clara, CA 95053

Peter Barton Hutt, Covington & Burling, 1201 Pennsylvania Avenue, N.W.,
Washington, DC 20044-7566

For Amicuses:

For Institute on Global Drug Policy of Drug Free America, et al.: David G.
Evans, 175 Oak Grove Rd., Pittstown, NJ 08867 (908) 788-7077

For Family Research Council: Janet M. LaRue, Family Research Council, 801 G
Street, NW, Washington, DC 20001 (202) 393-2100




Newshawk: Our mission: http://www.drugsense.org/mission.htm
Pubdate: 28 Mar 2001
Source: On The Docket
Copyright: 2001 Northwestern University
Website: http://www.medill.northwestern.edu/docket/
Author: Ellen Gedalius
Note: The actual pubdate is unknown. This item is provided as an exception
to MAP's web only source policies.
Cited: Oakland Cannabis Buyers' Co-op http://www.rxcbc.org/
Bookmarks: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
http://www.mapinc.org/ocbc.htm (Oakland Cannabis Buyers Cooperative)
NOTE: Legal Documents from United States of America V. Oakland Cannabis
Buyers' Cooperative and Jeffrey Jones are at http://www.druglibrary.org/ocbc/