Gov. George Bush said he backs a state's right to decide whether to allow medical use of marijuana, a position that puts him sharply at odds with Republicans on Capitol Hill. "I believe each state can choose that decision as they so choose," the governor said recently in Seattle in response to a reporter's question.
- 1999 news story, cited by the concurrence in U.S. v. Oakland Cannabis Buyers' Cooperative
Well, he also said that if there was a person working for him that broke the law ... suffice to say, that his administration joined the Clintonian effort against the California policy of allowing medicinal use by prescription. A choice chosen by that state's people by a similar means as obtaining the current governor -- popular referendum. The earlier challenge rejected a necessity defense made by distributors with three justices (led by Stevens) rejecting the majority's noises against any necessity defense not expressly found in the statute.
The Supremes rejected a Commerce Clause challenge to Bush's move against the state's policy, one shared in some fashion by many more states (my own was thinking of experimenting, so to speak, but the SC ruling ended things). Ironically, the majority opinion (Stevens) was more sympathetic than the minority (O'Connor) to allowing it to go on. Surely, the two liberal judges who heard the case on remand was as well. If they could, they surely would have granted relief. The "necessity" of it all was cited in a heart wrenching fashion:
If Raich obeys the Controlled Substances Act she will have to endure intolerable pain including severe chronic pain in her face and jaw muscles due to temporomandibular joint dysfunction and bruxism, severe chronic pain and chronic burning from fibromyalgia that forces her to be flat on her back for days, excruciating pain from non-epileptic seizures, heavy bleeding and severely painful menstrual periods due to a uterine fibroid tumor, and acute weight loss resulting possibly in death due to a life-threatening wasting disorder.
This litany of ailments makes no mention of the fact that Raich was confined to a wheelchair before she found effective pain management in marijuana, which restored her ability to walk. The seriousness of her conditions cannot be overemphasized: in 1997, the extreme physical and psychological pain led Raich to attempt suicide. We are mindful that “extreme pain totally occupies the psychic world” and that “in serious pain the claims of the body utterly nullify the claims of the world.” ... Raich has shown remarkable fortitude in pursuing this action to vindicate the rights of the infirm despite her precarious physical condition.
One of her lawyers discusses things here. Anyway, the ruling also didn't quite buy the possibility offered that she might be able to get the drug legally under some federal program: "The program is highly restricted and has not accepted new medical marijuana patients since 1992." Nonetheless, it felt that if a necessity defense is made -- and though one wonders how she would get the stuff without distribution, such a "last resort" method is much more justifiable in her case than for a seller -- an actual prosecution is where to make it. There was also always the chance some other means of pain relief would be possibility before then. The option of Marinol is usually tossed out there, though those in the know suggest it is a poor alternative.
Overall, I don't think the majority (a judge dissented as to the breadth of the necessity defense discussion) really had its heart in such dodges. And, this sounds a bit like not finding standing for birth control clinics in Poe -- the law made it impracticable to start them, so prosecution was not necessity to do the job. Same here. In fact, the ruling tossed in a suggestion that conviction alone might not be what is needed for a "necessity defense." A simply arrest and denial of pain relief resources might as well. And so forth.
With the Commerce Clause argument -- even local use held to affect interstate commerce in marijuana -- failing, that left a liberty interest. This was surely a longshot, and the appellate judges made that clear the first time around. The Ninth Circuit tried a similar route with euthanasia, but the Supremes were wary. [One wonders if even a necessity defense would stand-up, especially with Kennedy's known annoyance for drug claims, see his mention of "druggie schools" at orals for a school drug testing case.] Though a majority recognized some right to refuse treatment and alleviate with pain (notable here), the Court used the ruling to send one of their "don't go too far with substantive due process" messages.
We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” ... For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental.
So said the judges here with a nod to Justice Kennedy's comments in Lawrence v. Texas about the changing nature of due process as society's opinions change and things developed in state legislatures and such (Brennan looked down, smiled and gave him a "thanks pal"). And, they were pretty much right as a matter of precedent to say as much though it seems rather paltry to view the right here as something akin to the "right to use marijuana" (Lawrence didn't interpret things so narrowly ... it wasn't a right to "have oral sex," but there was more precedent for the sexual privacy there as well). Surely, the Supremes would not likely accept the ruling otherwise ... and the necessity argument was left open as was one made too late in the game.
This is not to say things went as it should in an ideal world. The prosecution should not have gone on in the first place -- the states should have been allowed to work as laboratories here. Likewise, I think there is a right to alleviate pain in this fashion, and the ruling admitted some cases in some sense suggested as much. But, the Supremes cautioned against open-ended rights of that sort ... the euthanasia case a sort of warning. Still, again, a majority among the concurrences seemed to accept rights respecting "personal dignity, medical treatment, and freedom from state inflicted pain." Of course, O'Connor isn't around any more. Still:
Were the legal circumstances different--for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life--then the law's impact upon serious and otherwise unavoidable physical pain (accompanying death) would be more directly at issue. And as Justice O'Connor suggests, the Court might have to revisit its conclusions in these cases.
Sounds applicable here at least. There is still the necessity defense for this individual plaintiff, but what of the others? More victims of the "drug war."