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Voting 8-0, the court ruled against the Oakland Cannabis Buyers' Cooperative, a California club that distributed marijuana for medical purposes. Justice Clarence Thomas, who wrote the decision, declared that "marijuana has no medical benefits worthy of an exception" from its status as an illegal drug under the federal Controlled Substances Act.
As a result, federal drug enforcement agents and U.S. attorneys now have the power to shut down other buyers' clubs. There are some three dozen of them nationwide, according to Keith Stroup, executive director of the National Organization to Reform Marijuana Laws (NORML). Still, it's not clear exactly how the decision will affect patients whose medication
has long been stuck in legal limbo. Though the Supreme Court decision is irreversible, some advocates are predicting that, practically speaking, medical marijuana users will continue to smoke on the hazy outskirts of the law.
For one thing, most medical marijuana users will be unaffected since they don't get their pot at buyers' clubs. "They grow it themselves or go to the corner and buy it like everyone else does," says Dan Abrahamson, director of legal affairs for Lindesmith Center, a nonprofit organization that promotes liberal drug policies.
And even while marijuana has been illegal under federal law, nine states have exempted patients from prosecution for having or smoking pot if a doctor recommends they use it. The decision didn't directly address these state protections, including eight voter initiatives and a Hawaiian law that protects medical marijuana users. Most medical marijuana arrests are made by state authorities, and experts doubt the court decision will lead to a federal crackdown.
"We know that this is one of the lowest priorities for the feds in the war on drugs," says Abrahamson. "History shows that that's not how they're going to focus their limited resources."
In California, where state law allows patients to grow and use marijuana if a doctor recommends it, none of the six clubs involved in the initial litigation that ultimately made it into Monday's decision is still selling marijuana, and only one of more than 30 clubs once operating statewide is still operating as it was, according to Dave Fratello, spokesman for the advocacy group Americans for Medical Rights.
Fratello emphasizes that patients are still finding the drug, however. "The federal case never stopped medical marijuana distribution, it simply drove it underground," he says. "Now it takes a couple of phone calls to find marijuana that could have been obtained from the storefronts." Fratello also complains that patients buying on the street face "rip-offs, fakes, and price-gouging."
The roughly seven buyers' clubs in New York City operate in a similar gray area. One club, the Patients' Cooperative, has registered almost 1000 members and regularly provides marijuana to some 200 people with AIDS, glaucoma, or MS, according to the group's coordinator, Kenneth Toglia. Though the state makes no special protection for medical marijuana users, the club asks its members to provide proof of diagnosis from their doctors in exchange for identification cards, which, according to Toglia, have helped them escape arrest.
In the two years the club has been in existence, between 40 and 50 people have had run-ins with police, according to Toglia, and about half have been released with their pot after showing their identification cards and explaining that they were using it for medical purposes. A few, including a blind man who suffers from glaucoma, were sent to jail.
The medical benefits of pot are worth such a price, supporters say. It can combat not only the pain of disease but also the many side effects of medications, according to John Sheridan, a member and past president of New York Cannabis Care. Sheridan, who has AIDS-related wasting syndrome, says he smokes marijuana to restore his appetite, which has been diminished by the regimen of antiviral drugs he takes. Pot has helped Sheridan, who is 5 foot 8, bring his weight up to 143 from a mere 111 when he was at his sickest in 1994.
Though some people take Marinolone of the chemicals found in potin a legal, prescription form, others say the pill is inferior to the plant alternative, in part because its effect is harder to moderate. "It would usually come on so strong that I would be too hungry to eat," Sheridan says of Marinol. "When I was suddenly so hungry, I'd throw up everything I ate."
With pot, Sheridan has developed a routine of taking his antiviral pills, smoking part of a joint, and then having a small meal within 20 minutes. For the AIDS patient, no law or Supreme Court decision will change how he chooses to treat this discomfort. A night in jail seems a small worry "when I've already been threatened by the grim reaper," says Sheridan.
The Oakland case has more significance to lawmakers, who have been struggling to separate medical marijuana from other drugs for years. "The decision is a frightening one beyond marijuana," says Manhattan-based assemblyman Dick Gottfried, the sponsor of state legislation that would allow doctors to prescribe marijuana (it has languished for the past four years). "I think when Congress is playing doctor, they are stepping into the constitutional right of privacy."
Gottfried also notes that the Food and Drug Administration approved one of the active chemicals in pot as safe and effective when it's marketed by a drug company as Marinol. "For the Supreme Court to say that they cannot review a congressional determination that the same ingredient when inhaled is criminal is utterly irrational," says Gottfried.
Perhaps most frustrating to medical marijuana advocates was the court's refusal to reconsider marijuana's designation as a "schedule one" drug, for which there are no exceptions. "The court seems to say that if Congress makes a medical decision, that's the end of the discussion," says Gottfried. Pending federal legislation sponsored by Massachusetts congressman Barney Frank would reclassify pot as a "schedule two" drug, making it legal to prescribe, as some opiates and barbiturates already are.
In the meantime, medical marijuana advocates are doing what little they can. Even if they won't be providing pot, "[B]uyers' clubs will continue to provide ID cards," says NORML's Stroup. And most patients will continue to get their pot illegally, whether from small cooperatives or dealers on the corner.
It's an arrangement that many medical marijuana users find sorely inadequate. "Eventually, the U.S. is going to have to make some kind of exception for medical marijuana," says the Patients' Cooperative's Toglia. "Until then, it'll be like the French resistancea lot of people risking their lives to keep others alive."