The Supreme Court medical marijuana distribution judgement

The Supreme Court medical marijuana distribution judgement

By M.L. Simon

The Supreme Court medical marijuana distribution judgement

The recent Supreme Court ruling on medical marijuana is very interesting on a number of points. It is interesting for what it said and what it didn’t say, what it did and what it didn’t do, and especially for how the government framed the case.

The issue before the court was whether it was legal under the common law doctrine of medical necessity for the Oakland Cannabis Buyers Cooperative to manufacture and distribute medical marijuana to patients who are seriously ill and for whom no other drug provides relief or the desired medical effect. The kind of patients we are talking about have cancer, multiple sclerosis, AIDS, quadriplegia and other serious ailments.

So the first point is, we have sick people. The second point is that under the Controlled Substance Act there are five schedules that a drug can be placed in to determine the kind of restrictions required to sell the drug. The least restrictive section allows unlimited over the counter sales. The most restrictive section allows no sales at all. Marijuana, by law, is placed in the most restrictive section. What are the criteria for being placed in the most restrictive section?

A drug must have no medically accepted use in treatment. The drug must have a high potential for abuse and the drug must be insufficiently safe for its intended use.

So our first question is, does marijuana have a medical use? A report from the Institute of Medicine commissioned by our former Emperor of Drugs Barry McCaffrey said that it does have medicinal uses.

So what is the drug’s potential for abuse? Department of Justice studies say that its potential for abuse is near or lower than that of coffee and lower than tobacco and alcohol.

And finally, how safe is the drug? First let me note that there are usually between 500 to 1000 aspirin overdose deaths a year, intentional and unintentional. For marijuana, there have been zero recorded overdose deaths in 5,000 years. Aspirin should have as good a record.

So we see that marijuana does not fit the category it was assigned. No medical use.

A further point is that the government itself surprisingly recognizes a medical marijuana defense. It’s called the Compassionate IND program. It distributes medical marijuana to eight surviving patients. About seven pounds a year each. These eight claimed a medical necessity defense, and if marijuana was illegal, the government was required to supply it since there was no other legal source of supply. And the judge in the case said yes, there is indeed a medical necessity defense and the government needed to supply all the plaintiff’s future needs. So marijuana was assigned to the Compassionate IND program. A heavily-guarded farm in Mississippi still grows the federal, medicinal marijuana the patients require. Your federal tax dollars at work.

The government in its brief said only the government was allowed to be compassionate. And there was darn little of that to go around. Eight is enough.

And the funny thing is, our compassionate conservatives bought this argument so well that they never even mentioned it in their decision, despite the plaintiff’s lawyer, Gerald Uelmen of O.J. fame, having mentioned it in the oral arguments as well. In addition, five of the justices claimed that besides not allowing groups or other individuals to be compassionate to the sufferers, perhaps the sufferers couldn’t even be compassionate to themselves. The issue of scheduling was never discussed in the decision.

M.L. Simon is a designer of industrial controls and a local Libertarian activist.

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