WASHINGTON (Reuters Health) Mar 29 - With the federal government warning against creating "marijuana pharmacies," a number of Supreme Court justices expressed reservations on Wednesday about allowing marijuana to be given to patients who prove cannabis is medically necessary.
In a major medical marijuana case involving a California cannabis club, the justices appeared sympathetic to the government's argument that patients may not get marijuana as a "medical necessity" because it has been classified as an illegal drug under federal law. The hour-long hearing marked a watershed for the US medical marijuana movement, which has been mired in legal battles ever since California in 1996 approved the nation's first initiative legalizing medicinal use of the drug.
US Justice Department lawyer Barbara Underwood criticized a US appeals court ruling for allowing marijuana clubs in California to distribute the drug to those who prove cannabis is medically necessary. She said the ruling "allows the operation of marijuana pharmacies." Underwood also said federal agencies had not established that marijuana was medically useful. In fact, she said agencies had established the drug has a high potential for abuse and alternative pain relievers exist, including the synthetic form of marijuana's active ingredient.
Several justices asked Underwood why the Justice Department did not simply bring criminal charges against the club, instead of the civil lawsuit seeking an injunction to stop it from distributing marijuana. Chief Justice William Rehnquist asked Gerald Uelmen, the lawyer for the Oakland Cannabis Buyers' Cooperative, whether there was any other case in which the Supreme Court has recognized the "medical necessity defense."
Uelmen admitted no other case existed, prompting Rehnquist to remark that Congress ruled out that defense when it placed marijuana on the listed of illegal drugs under the federal Controlled Substances Act.
Rehnquist asked how serious the medical condition must be to justify use of marijuana, pointing out that cannabis did not treat disease, but only eased a person's pain and provided comfort. Uelmen said marijuana may be provided to seriously ill patients facing "imminent harm," such as death, starvation or blindness. Justice Anthony Kennedy disagreed with Uelmen's argument that only a very narrow exception for medical marijuana use would be created. "It doesn't sound limited to me at all," he said. "That's a huge rewrite of the statute."
Justice Sandra Day O'Connor said the US appeals court "appeared to create a blanket exception to the Controlled Substances Act. "Justice Antonin Scalia told Uelmen the defense can be raised by an individual, not by "someone who opens up a business to provide illegal drugs to those who need [them]."
Under questioning from Scalia, Uelmen said the defense could apply to use of other illegal drugs by sick patients. Scalia called it an "easy gamble" for the patient. "A jury versus the grim reaper. I'll take the jury any day," he said.
The Supreme Court
will issue its ruling by the end of June.
2000 Reuters Ltd.