LEGAL CHALLENGE

EVEN BEFORE THE GREAT PROP. 215'1 VICTORY last November, while our forces were concentrating on getting out the initiative vote, a few of us began urging the lawyers in our camp to be ready with a simple test case to settle the constitutional issues that would inevitably be raised if we won in Arizona and California. The Arizona victory (Prop. 200,2 65 percent) went further than Prop. 215, covering prescribing (as well as "approving and recommending") and medical discretion in the use of other controlled substances besides marijuana.

Legislation is already on the books in a number of other states that also exempts medically prescribed controlled substances from the all-inclusive federal prohibition pattern. All such laws raise three questions: (1) May the doctor prescribe? (2) May the patient possess and use? and (3) May a "provider" grow or otherwise obtain the prescribed substance and deliver it to patients?

There is, surprisingly, a long neglected Supreme Court precedent on these points. In 1925, the Court held unanimously that doctors may even prescribe cocaine and morphine to addicts for self-administration to relieve symptoms of their addiction, and that federal law to the contrary "would certainly encounter grave constitutional difficulties".3 Despite that mandate, doctors allowed themselves to be terrorized right off the scene by the odious narcs of that day.'4 And again in 1955, lawyers (the American Bar Association) persuaded doctors (the American Medical Association) to stand up for their rights under their Hippocratic Oath in a joint challenge to the Federal Bureau of Narcotics, then in the Treasury Department. But Treasury scuttled that venture by threatening the sponsoring foundations, Ford and Russell Sage, with tax-exemption troubles.'5

Now Prop. 215 (and Arizona Prop. 200) have given us another wonderful opportunity. With the electorates of those two important states so squarely behind us, and the desperate needs of seriously ill patients on one hand and the established therapeutic value of marijuana on the other, we have a strong case for a significant exclusion from the federal drug war arena, both on compassionate grounds and on the promptings of common sense. The whole nation is watching, with more interest, and more sympathetic attitudes, than ever before.

THE CALIFORNIA CASE

But our original team of lawyers nearly derailed us again. In their test case, filed in California on January 14,6 they only claimed doctors' rights to discuss under the First Amendment. With a few dissenters like me protesting, their complaint ignored the rights of patients to possess and use, and the rights of providers to provide. In the present state of the law, we have to claim everything the initiatives gave, immunity for doctors and patients and providers. All doubts about that were removed on December 30 when, in a nationally televised White House press conference, General Barry McCaffrey appeared with Health and Human Services Secretary Donna Shalala and Attorney General Janet Reno to warn specifically that, despite the initiatives, all federal penalties and sanctions would be enforced.7 If such threats are left unchallenged, all the hope and effort and resources lavished on those initiative campaigns will have been wasted. The new laws will have virtually no effect.

Moreover, not only did the California case fall short, it is now in grave danger of being collapsed by the government. A few of us had been warning the California-case lawyers that their complaint was so restricted the federal government might simply concede their First Amendment argument. And that is the first thing that happened. On February 28, timed to get minimum publicity over the weekend, the Department of Justice announced that it was withdrawing any challenge to doctors, who of course could discuss marijuana freely with their patients. And, on April 11, the court entered a temporary restraining order freezing the status quo until the case could be settled or tried.

This outcome had seemed obvious from the outset. If I tell you to rob a bank, that is my right of free speech under the First Amendment (almost the only thing not protected by the Amendment is yelling "Fire!" in a crowded theater). But if you do rob the bank, "he told me to..." is no defense for you. And after they lock you up, they may even come after me for inciting, aiding and abetting, or conspiracy.

After the federal government's concession, the trial judge pressured the parties to end the case by settlement. When that failed, she entered an order, April 30, granting an injunction and certifying a narrow class, with a 43-page order making it clear that doctors could talk about marijuana therapy so long as they did not urge their patients to obtain or use — in short, so long as no one violates any existing federal prohibition law:

"The First Amendment allows physicians to discuss and advocate medical marijuana, even though use of marijuana is itself illegal...."

"[D] efendants may only prosecute physicians who recommend medical marijuana to their patients if the physicians are liable for aiding and abetting or conspiracy under these [federal] statutes ... criminal conduct, which plaintiffs concede the government may prosecute."

Proponents of this suit hailed the order as "a huge victory." "Drug czar Barry McCaffrey and the DEA are paying the price today for.., an unconstitutional policy...."

So the California case will proceed, unless settled, on the slow course of further preliminary skirmishes, full trial, and prosecution up through the usual appeal channels.

THE DISTRICT OF COLUMBIA CASE

Meanwhile, on March 6, anticipating something like this and worried that the government might make a move of its own,8 a dissenting group, of which I am a part, reluctantly broke ranks and filed a second suit, this time in the District of Columbia where all the defendants are located.9

There is a federal statute, the Declaratory Judgment Act, that is perfectly tailored for this situation. If I want to do something that may be illegal — refuse to pay a disputed tax, bulldoze a wetland, etc. —I don't have to do it and risk arrest. If I am truly threatened (and nothing could have been clearer on that than the December 30 White House press conference), I may apply to a federal district court for a declaratory interpretation of the law, rendered in the form of an appealable judgment. There is even a rule that lets the court give my case priority hearing.

Win or lose, I can then go to the U.S. Court of Appeals and ask for certified questions all the way to the Supreme Court. In short, with proper pleading and a little luck, we could almost be in the High Court testing the validity of Prop. 215 before the end of this term (next fall). And what strong arguments for expediting the case: patients out there suffering, going blind, and dying unnecessarily every day! What arguments against lawyers' tricks and artful dodging!

At this writing, the federal government has joined with us in a Joint Scheduling Order, permitting us to dispense with preliminaries, hopefully stipulate controlling facts, and go right to cross motions and briefing questions of law — beginning the "fast track" procedures we had hoped for.

On the merits, we are arguing, in a clean, single-focus declaratory judgment complaint, the First Amendment, of course, but also the Ninth (the right to appropriate medical care as determined by one's doctor is a right "retained by the people"), and Tenth (power to limit medical discretion 10 is not a power conferred upon Congress, hence it is left to the states), the commerce clause, and some administrative limitations. We are also studying other constitutional limitations. If we don't raise all the arguments, they'll never be tested, but it may be better strategy to concentrate on our strongest ones.

We have invited all 57 attorneys general, the states plus Puerto Rico, Guam, etc., to join our suit as parties or amici curiae, and we welcome other participation and support.

In every lawsuit, someone wins and someone loses. But we believe that, win or lose, a quick resolution of this fundamental federal-state issue by a single, landmark case will be in everyone's best interests. Even if the Justices uphold the drug warriors and their federal prohibition pattern, the focus of our reform efforts will be sharpened. We will know better what to argue, where to concentrate lobbying efforts, and whom to surround with wheelchairand-gurney picket lines.

A PREDICTION

Preparation of our case has brought me very close to the medical-marijuana scene, including even some contact with our warrior-adversaries. Excepting a handful of say-anything crazies on Capitol Hill and in state capitols, few of them are ghoulish enough to be happy denying the possibility that marijuana may indeed be valuable in easing the pain and prolonging the lives of sick Americans. And they are not comfortable saying silly things: that marijuana is dangerously toxic,11 that there are no studies showing its value, that more "peer review" is needed, that it is like laetrile or thalidomide, that NIDA and DEA have been fair and friendly to marijuana researchers.

They don't embrace the "gateway" argument easily, nor the fatuous assertion that stronger strains of Cannabis sativa make much difference. They know permitting doctors to prescribe medicine for the seriously ill doesn't send much of a "message" to kindergartners, or open the door to "legalization." And they feel the swing in public support, away from the mindless fanaticism of recent decades.

So what I expect is that, perhaps very soon, the federal government might simply reclassify cannabis into Schedule II. That would leave some restraints in place, and some of our legal challenges unanswered until another day, but it would be an act of courage and compassion (after all, the president doesn't have to worry about another election), and it would relieve everyone's immediate concerns. •

1 Now codified as California Health and Safety Code, Sec. 11362.5.

2 To be codified as Arizona Rev. Stat. Secs. I3-3412(A)9, 133412.01(A). The Arizona legislature has caused doubts by trying to repeal the initiative — raising constitutional questions.

3 Linder v. United States, 268 U.S. 5, 22 (1925).

4 See 62 Yale Law Journal 736 (1953).
5 Alfred R. Lindesmith, Drug Addiction: Crime or Disease?, Indiana University Press, Bloomington, 1961.
6 Conant v. McCaffrey, N.D. Cal., No. C 97-0139, F.M. Smith, J.

7 McCaffrey: "send a clear message ... that Schedule I drugs are against the law and won't be tolerated."

8 There was risk in delay, from the outset. The government could have preempted the action by setting up a prosecution with a quack doctor, dubious patient, and bad-record pusher, in a jurisdiction most hostile to Prop. 215. Good cases have been lost that way.

9 Pearson and Shaw v. McCaffrey, D.C.D.C., No. 97CV462, W.B.Bryant, J.

10 There is a clear difference between curbing doctors' possible abuses in handing out prescriptions for controlled substances to people who don't need them, to protect the channels of interstate commerce, and telling doctors when and how they may use drugs within their medical discretion in good faith therapy.

11 Shalala: "All available research has concluded that marijuana is dangerous to our health. Marijuana harms the brain, the heart, the lungs, and our immune system. Marijuana limits learning and memory perception and judgment and our ability to drive a car. And marijuana smoke typically contains over 400 compounds, some of which are carcinogenic."
34 The Drug Policy Letter • Winter/Spring 1997

Practicing lawyer for more than 50 years, drug policy reform activist for more than 40, Rufus King is co-counsel in the District of Columbia case described herein. King is the author of The Drug Hang-Up: America's 50-Year Folly and is a member of DPF's Advisory Board.