Let them eat chemo

Will the Supreme Court's ostrich-like ruling shut down the medical marijuana movement?

By Daniel Forbes

May 15, 2001 | Monday's Supreme Court decision against medical marijuana made one thing crystal clear. At every level -- executive, legislative and judicial -- the U.S. government remains steadfast in its opposition to the demon weed.

Even if it's being smoked by bald old ladies in wheelchairs.

Law enforcement officials, advocates and analysts disagree about the possible impact of the court's 8-0 decision that a federal law classifying marijuana as an illegal drug makes no exception for ill patients. And even some of those opposed to the ruling call it a legally justified, if narrow, ruling on the interpretion of federal drug law. But coming on top of the Clinton administration's unyielding opposition to medical marijuana, the refusal of Congress to consider removing marijuana from the list of Schedule I substances (the most serious classification) and President Bush's appointment of anti-marijuana hard-liner John Walters as drug czar, the court's ruling confirms that in the government's eyes, marijuana is still the front line of attack in the drug war. As the most widely used illegal drug, it remains central to the government's anti-drug strategy: Drug warriors clearly fear that any wide-scale medical use would point to its relative harmlessness and undercut decades of official pronouncements that it is a dangerous and addictive "gateway" drug.

At the same time, the ruling was sufficiently narrow that it's possible it will have little actual effect. Experts agree that the most visible "buyers' clubs" -- collectives organized to provide marijuana to help patients suffering from cancer, AIDS, glaucoma, M.S. and other diseases -- may be forced to shut down, and new ones discouraged. But the majority of patients who use marijuana, say many experts, will remain unaffected -- making the ruling symbolic but relatively toothless. Considering the tricky public relations issues raised by medical marijuana -- it's one thing to demonize some ghetto kid, it's another to turn a cold shoulder to vomiting cancer patients -- and the public's expressed support for it (in a CNN poll, 79 percent of Americans supported legalizing medicinal marijuana), this may be exactly the outcome the court desired.

Any thoughts that the justices were going to deviate from official dogma on marijuana were dispelled when they chose to rely on the 30-year-old Controlled Substances Act for guidance on pot's medical utility. Disregarding the ever-growing evidence of pot's medicinal value, including a government-sponsored 1999 report by the Institute of Medicine and the pro-medical-marijuana position of the California Medical Association, the court held that Congress' well-weathered act was the last word.

The majority opinion, written by Justice Clarence Thomas, was relatively narrow. The court did not indicate a willingness to strike down state laws such as California's Prop. 215, which legalized medical marijuana. It also left it unclear whether all medical marijuana use, including personal cultivation and use, is illegal, or only large-scale distribution efforts like buyers' clubs. A split on the court appeared over this issue, with three of the court's more liberal justices expressing concerns that their more conservative brethren had not left room for legitimate medical marijuana use. In a separate concurring opinion, which was joined by Justices Ruth Bader Ginsburg and David Souter, Justice John Paul Stevens wrote, "Most notably, whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here."

Some advocates share the liberal justices' fears that the conservative majority, if given the opportunity, would rule against an individual medical marijuana user. Kevin Zeese, president of Common Sense for Drug Policy, said, "If a personal case of a medical necessity defense was before them, I think this court would get five votes against it."

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