Wednesday, September 21, 2011

Analysis of Something Good Republicans Never Touch


Conant v. McCaffrey, later Conant v. Walters. Case Number 00-17222. 1997-2002.

Summary This allowed for a physician to discuss medical marijuana in a state, California, where medical marijuana is legal, without facing legal sanctions for doing so.

Background This was a class action suit that was upheld for plaintiff physicians by the Ninth Circuit Appeals Court and U.S. District Court. It was filed by Dr. Marcus Conant et. al.
The class action requested that physicians “have the right, protected by the First Amendment of the U.S. Constitution, to communicate in the context of a bona fide physician-patient relationship, without government interference or threats of punishment, about the potential benefits and risks of the medical use of marijuana”. They sought injunctive relief from criminal prosecution and revocation of Federal prescription drug licenses.
California voters approved the medical use of marijuana in the Compassionate Use Act of 1996. The use is required to be contingent upon a physician, orally or in writing, recommending its use.

Plaintiffs Dr, Marcus Conan as a dermatologist first recognized Kaposi’s sarcoma patients with new symptoms which helped lead to the discovery of AIDS. He prescribed medical marijuana and Marinol to about 100 AIDS wasting syndrome patients to stimulate appetites and to curb nausea. Upon receiving threats, he and his staff were “curtailing severely” information on medical marijuana that otherwise would have been provided to patients.
Several other physicians in this class action suit described similar threats that reduced their abilities to discuss medical marijuana with patients.
Several patients were a part of this class action suit. Some argued they would not have continued chemotherapy and they would be dead without the use of medical marijuana.

Defendants: The defendants named were four public officials serving in official capacities that enforce marijuana laws. The first defendant named was Barry McCaffrey, Director of the U.S. National Drug Control Policy Office.

Factual Background: The plaintiffs notes a 1990 survey of over 2,000 oncologists reported 44% recommended marijuana for nausea or stimulating appetite in chemotherapy patients.
It is noted the Food and Drug Administration permits tetrahydrocannabinol (found in marijuana) in synthetic form for treating emesis/vomiting and for treating weight loss in AIDS patients. It is stated that the synthetic form is not as effective and some patients have a side effect of dysphoria/mental confusion and that the pill form is difficult or impossible to be taken by patients with severe nausea.
It is noted that scientific studies have found marijuana have medical efficacy for patients with cancer, AIDS/HIV, glaucoma, epilepsy, multiple sclerosis, paraplegia spasms and pain, and quadriplegia spasms and pain.
Medical marijuana is legal in California according to section 11362.5 of the Health and Safety Code.
No Federal official, including the named defendants, had ever revoked a prescription drug licensed or punished any physician for recommending marijuana prior to the passage of California’s law legalizing medical marijuana. Barry McCaffrey had publicly threatened to seek prosecution of California physicians who recommend marijuana to patients, In 1996, McCaffrey issued a statement “The Administration’s Response to the Passage of California’s Proposition 215 and Arizona’s Proposition 200) that threatened that a physician recommending marijuana to a patient could be criminally prosecuted, have a license from the Drug Enforcement Administration to prescribe drugs revoked, be barred from participating in Medicare and Medicaid, and have it recommended that a state licensing board revoke a physician license and a surgeon licenses, when applicable.

Irreparable Harm The plaintiffs argue a patient has a constitutional right to a full range of medical information. The threats from the defendants have prevented physicians from providing this full information.

Prayer for Relief The plaintiffs sought to enjoin defendants and others from enforcing or threatening to enforce criminal, civil, and administrative procedures against a physician who recommends marijuana to a patient.

Court Order of Judge Fern M. Smith This order granted class certification and denied the defendants’ motion to dismiss.
The order notes the plaintiffs and defendants both appear to agree there are First Amendment rights to discuss using medical marijuana.
The defendants argue the government had a right to regulate the distribution and possession of drugs. Judge Smith notes in NAACP v. Alabama, 377 U.S. 288, 307 (1964) that the government cannot broadly sweep to invade protected freedoms.
The Judge concluded the First Amendment protects physician-patient communication until the point it becomes criminal that a physician aiding, abetted, or conspired to become a principal in violating a Federal law. This preliminary injunction prohibited the government from taking any administrative action against a physician for recommending marijuana in good faith.

United States District Court for the Northern District of California The Court permanently enjoined the government from initiating any investigation solely because a physician recommending medical marijuana.

Brief for Appellees United States Court of Appeals for the Ninth Circuit The Appeals court affirmed the judgment and injunction of the District Court.
The appelles argued it is emphasized this is not about doctors prescribing, distributing, or growing marijuana but is about the First Amendment right to physician-patient confidentiality and that the defendants lack the statutory authority to enforce actions over these discussions that are protected by freedom of speech.
It is noted that physicians recommend other treatments that are not Federally-approved medications, such as chicken soup, red wine, and vitamins. It is further noted that recommending something is not the same as obtaining something or prescribing something intended to be obtained.
The Federal government defendants argued that allowing physicians, who are role models, to recommend marijuana would conflict with their efforts to inform that public and especially young people about the dangers of drugs and marijuana.
It is noted the U.S. Supreme Court held that a physician had a right to discuss abortion or any medical subject with a patient in Rust v. Sullivan, 500 U.S. 173, 198-200 (1991).It is common law that a physician is required to provide complete information about all treatment options, which was upheld in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 269 (1990). The government is not permitted to distort doctor-patient communication that prevent the patient from receiving uncensored medical information, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 435 U.S. 748, 756-57 (1976).
The appellees noted the government’s argument that a physician recommending medical marijuana conflicts with its public messages against using marijuana. The appelles noted the government cannot limit free speech and cannot restrict speech on the basis of ideology or opinion, according to Rosenberger, 515 U.S. at 828 and 929, even when the government is hostile to the opinion expressed, in Texas v. Johnson, 491 U.S. 397, 414 (1989).

Appeals Court Decision The Appeals Court enjoined the Federal government from investigating or revoking a physician’s license as the basis of recommending medical marijuana. It recognized the First Amendment rights of doctor-patient relations.

American Public Health Association et, al. Amicus Brief This brief notes direct observations from health care professionals as well as scientific studies that there are medical benefits to marijuana use. Four of the Amici in this brief use medical marijuana with the permission of the Federal government.
The brief notes that Canada allows physicians to prescribe and recommend medical marijuana. It also observes the House of Lords of Great Britain concluded that marijuana has medical efficacy.
Marinol, which is synthetic marijuana, may be legally prescribed. Marinol acts more slowly and less effectively than does marijuana.

California Medical Association et. al. Amicus Brief This brief defended the free speech of physician-patient speech under the First Amendment. It notes the government may ban illegal conduct yet it cannot suppress speech about illegal activity. It also notes that medicine is regulated by the state and not by the Federal government.

California Academy of Family Physicians et. al. Amicus Brief This brief warns against allowing the Federal government to overreach and stop free speech between physicians and patients. It notes the U.S. Health and Human Services Department warns HMOs against “gag clauses” that limit what doctors tell Medicare patients about treatment options. Both President Clinton and HHS Secretary Donna Shalala have publicly defended the free exchange of information between physicians and patients.

United States v. Oakland Cannabis Buyers’ Cooperative et. al. Case Numbers C 98-00085,6,7,8,9 CRB and 98-00245 CRB. (1998-2007)

Summary A cooperative, the Oakland Cannibus Buyers’ Cooperative, grew marijuana. The Federal government put a halt to this. The court agreed that the Federal government may do this. The U.S. Supreme Court ruled there is no medical necessity defense in this case and that the Cooperative’s actions are illegal.

Appellants’ Opening Brief Oakland passed a city ordinance allowing medical marijuana. Oakland’s City Manager selected the Oakland Cannabis Buyers’ Cooperative as the organization permitted to provide medical marijuana and to provide enforcement of the ordinance. City ordinance provided the Cooperative with civil and criminal immunity from state and local government officers. Employees, directors, and agents of the Cooperative are deemed as officers of the City of Oakland.
The Federal government enjoined the Cooperative for violating Federal law against manufacturing, distributing, and possessing marijuana.
The Cooperative notes that California voters passed the Medical Use of Marijuana initiative. The appellants state they are engaged in lawful activities under state and local law.
The Cooperative argued that not allowing seriously ill patients to have medical marijuana violated their Ninth Amendment protections of life and liberty.
The Federal government argues Federal law applies over state and local law.

Brief of Amicus Curiae in Support of Appellees in Support of Affirmance This brief filed by The City Attorney for Oakland and others noted that cannabis has been an effective medicine for over 3,000 years. It notes the 1937 testimony of an American Medical Association spokesman arguing against banning marijuana as it would burden health professionals in depriving them of prescribing something that research may prove to be of substantial value. It mentions the LaGuardia Committee’s five year study that found attacks on marijuana as unfounded. It describes how the Shafer Commission, which was led by a “drug hawk” Raymond Shaffer, stacked with conservative doctors, and led by a noted anti-drug Executive Director, concluded marijuana should be decriminalized. Also noted is the recommendation of an Administrative Law Judge that natural marijuana is one of the safety therapeutic substances.

Brief of Amicus Curie. State of California, in Support of Respondents The State seeks to preserve the sovereign jurisdiction of the State and of the electorate that passed Proposition 215. The 9th and 10th amendments give the states the right to determine uses of treating serious illnesses. The 9th Amendment prohibits Congress from interfering with California regulating the health and welfare of its citizens. The 10th Amendment gives states the power to determine powers not delegated by the Constitution. The Supreme Court allows states to use the democratic process to determine the issue of regulating abortion, which California argued is similar to this issue.

Motion for Leave to File Brief as Amici Curiae and Brief of California Medical Association and National Pain Foundation as Amic Curiae in Support of Respondents The CMA and NPF fully support appropriate regulation of drugs yet argued that physicians and patients should be able to consider alternatives when standard therapies fail. It is argued that, while marijuana is a Schedule 1 drug with no medical use, the Federal government has never claimed that marijuana has no medical use. Marijuana fits the criteria for medical use as it has a known chemistry, has been shown it can be used safely, qualified studies have proved its efficacy, the evidence from the studies are widely available, and qualified experts accept these studies. There are numerous individual cases that show marijuana has a medical use. The DEA argued these are anecdotal cases. It is argued there is a public interest for marijuana to be used as medicine. Allowing marijuana for medical use will not interfere with the government to enforce illegal use of marijuana. There are no alternatives to marijuana for some patients and it is argued they will suffer unspeakably if they are not able to use marijuana.

Amicus Curiae of the American Civil Liberties Union of California et. al. in Support of Respondents It is argued the Controlled Substances Act of the Federal government leaves discretion for an injunction for medical necessity. There are patients in severe physical suffering would face a hardship if marijuana is not available to them.

Brief Amici Curiae of the American Public Health Association et. a. in Support of Respondents. It is noted that the U.S. Institute of Medicine stated there are “limited circumstances in which we recommend smoking marijuana for medical uses”. The British House of Lords also issued a report agreeing there are medical benefits to marijuana. These studies have indicated that marijuana may not be the superior drug for all patients, yet it should be recognized that there are patients who would get the best medicine from using marijuana. It is for these patients that medical marijuana should be provided. Marinol takes more slowly to act and is not as effective as marijuana, in most cases. Many pain and spasm patients require faster treatment than what Marinol provides. The court is urged to look at the full range of facts and recognize there are patients who are unable to use conventional treatment who could benefit from medical marijuana.

Brief Amici Curiae of the Marijuana Policy Project et. al in Support of Respondents. It is argued that the government’s argument that the Food and Drug Administration has not approved the use of medical marijuana should be rejected because the Federal government has impeded research into medical uses for marijuana. A 1986 FDA study found cannabis controlled nausea and vomiting in chemotherapy patients. Further studies since then have been rejected by the Federal government. Since the FDA process has not operated as Congress intended, it is argued that patients should be allowed to make a medically necessary argument in order to use medical marijuana.

Appellee’s Reply to Brief of Amicus Curiae The Federal government argued a city cannot engage in conduct against Federal law.
The Federal government did not find it relevant the City of Oakland’s argument that Congress had neglected the Shafer Commission report. It notes that Congress has not acted to remove marijuana from being listed as a Class 1 drug.
The Federal government disputes that there is a Constitutional right to use marijuana because the voters of California approved this. It is argued states have no right to have a referendum to declare enforcement of Federal law as being unconstitutional.

United States Court of Appeals, Ninth Circuit. Decided. 190 F.3d. 1109. This denied the Cooperative’s motion to dismiss the complaint and found the Cooperative in contempt of injunction. The United States Marshal was empowered to seize the Cooperative’s offices.
The case was remanded to consider allowing the distribution of cannabis to seriously ill patients. The court was asked to consider criteria for a medical necessity exemption.

Reply Brief for Appellant United States of America The Justice Department argued that medical necessity is not a defense for violating Federal law. It is argued it is the clearly expressed intent of Congress to uphold the Controlled Substances Act. Thus, there can be no argument that there is a medical necessity for medical marijuana when Congress has made a clear intent that marijuana should remain illegal, according to the Justice Department. The Shafer Report is mentioned as recommending the decriminalization of marijuana, yet the fact that Congress has continued to keep marijuana illegal in the face of this recommendation demonstrates Congress intends for marijuana to remain illegal, according to the Justice Department. The Government further denies that marijuana is a safe and effective medicine.

Appendix to the Petition for a Writ of Certiorari An issue is whether the court’s injunction failed to consider the public interest. The defendants argue that stating that Congress has failed to act does not rebut that there is a medical necessity to medical marijuana.
A District Court injunction prohibited the distribution of cannabis except to patients who are members of the Collective who have a serious medical condition that is treated by cannabis, would suffer immediate harm without cannabis, and there is no reasonable legal alternative to cannabis.
A Federal agent witnessed the Collective violate the injunction and make 14 marijuana transactions. In addition, the Collective issued a press release stating they were going to do this.
The court ruled that Proposition 215 does not conflict with Federal law because it exempts certain people from California drug laws. Thus, a seriously ill California has a right to obtain and use medical marijuana. It remains illegal under Federal law to distribute marijuana for any purpose except for approved research. The Collective claimed to be a cooperative where members shared medical marijuana amongst themselves and that third parties were are involved. The court ruled this argument was not likely to prevail.
The Supremacy Clause makes the only issue whether Federal law has been violated. The court believes this is likely but notes no decision has been made as to whether Proposition 215 is unconstitutional nor if a patient should be enjoined from possessing marijuana upon the recommendation of a physician.
The San Francisco District Attorney raised the issue of the distribution of medical marijuana by a local government under strict controls. It is noted the distribution of clean needles violates Federal law but that the Federal government has not acted to stop these distributions. The court noted this issue was not before the court.

Reply Brief for the Petitioner The Justice Department petitioner argues that Congress has placed marijuana as a Schedule I controlled substance that bans it for any purpose, including medical use, although except for approved research. This ban is incompatible with a medical necessity argue, according to the petitioner.

Brief for the Petitioner Congress determined in 1998 that marijuana does not have any medical use. The City of Oakland declared a public health emergency to allow the distribution of medical marijuana. A medical necessity can not apply when there has been a legislative resolution that conflicts with it, according to the Justice Department petitioner.

Brief for the Respondents It is argued that patients who are also Collective members face a choice of evils between violating the law versus facing debilitating pain or loss of eyesight. There are no legal alternative medicines available to these patients. The people obtaining this medicine do so under duress and the Federal government’s actions against them is entrapment, according to the Collective. It is further argued that there are more than research exceptions to the ban on marijuana as the Federal government approved 79 patients to use marijuana for chemotherapy patients. It still permitted eight people to use medical marijuana, at the time of this brief. The brief notes that the Congressional disapproval of not legalizing marijuana is a caption buried in an omnibus appropriations act. The brief argues that patients have a fundamental right to be free from government interference of the personal, self-funded medical decisions. It notes Federal courts traditionally give greater discretion to seriously ill patients.

Oral Argument Before the Supreme Court The Acting U.S. Solicitor General argued Federal statute leaves no room for a medical necessity exception to Federal marijuana law. It is argued necessity requires a balancing of harms that does not apply in this case as Congress has already decided that balance.
A Justice observed a footnote indicating the case is a sham as the Collective may be a front for illegal marijuana use.
A Justice questioned that the Federal government did not enforce this against severely ill patients until California passed its proposition.
The Acting Solicitor General indicated that Marinol is a legal alternative. It was also noted that the FDA has not tested and approved marijuana for medical use.
A Justice questioned why the Federal government did not state it preempted California’s law. The Acting Solicitor General responded that the California law provides a person with a defense against California law, and this does not conflict with Federal law. A Justice then asked if this meant California law states a person would not violated state law but is still at the mercy of Federal law, and the Acting Solicitor General agreed.
A Justice questioned if this was brought as a civil case because California juries may be prone not to convict people on crimes with which they disagree. The U.S. Solicitor General did not have an answer to this, except to state that it is more desirable for find a mechanism to resolve a dispute before jailing people.
George Uelmen, arguing for the respondent Collective and others, claimed not pursing a criminal prosecution deprives the respondents of a jury trial and that the standard of proof differs by bringing a civil case. Instead, a summary judgment was made with no fine but with the business being seized. Thus the respondents could have been be jailed for refusing to abide by the judgment, and done so without a jury trial. The respondents abided by the judgment and halted their activities.
A Justice questioned the medical necessity defense as the action was brought against the Collective clinic and not against the patients. A Justice also questioned that non-medical people had determined what is medically necessary.
Uelman responded that California requires a physician’s recommendation or approval. He argued that these conditions are unusual and were not contemplated by Congress when it required a physician to make a prescription.
A Justice asked if there are any other cases where the court has recognized a medical necessity defense. Uelman state there are none but argued Congress did not rule out this defense. He also stated there is a necessity defense in common law. This extends to the Collective as they have the necessity of not letting someone die from not giving them medicine that would enable them to continue chemotherapy or not go blind from glaucoma.
Underwood rebutted arguing that Congress considered and rejected alternatives to cannabis and thus there can be no medical necessity defense. She noted the respondents never submitted marijuana to the FDA for review.

Supreme Court of the United States The Court rejected the medical necessary argument since marijuana is a controlled substance. It is noted that a medical necessity defense is controversial even at common law. Congress has made a determination of values that marijuana has no medical benefit. This was the opinion of Justice Thomas that was joined by four other Justices.
Justice Stevens with two other justices concurred yet stated medical necessity is not a defense to manufacturing and distributing marijuana. It finds the overbroad language unfortunate as there should be respect for sovereign States and Federal courts should avoid or minimize conflict between Federal and state law.
Justice Breyer did not take part in this decision.

Defendants’ Brief on Remand The defendants raised Constitutional issues they believe the Supreme Court failed to consider which led to an injunction being issued that stopped their operations. It is argued that an injunction must be issued only to protect interstate commerce. They are that intrastate distribution of marijuana does not substantially affect interstate commerce, that its distribution is not an economic activity, and that the action interferes with state rights, as protected by the 9th and 10th Amendments. It is argued it is the will of the people of California that medical marijuana be provided. The injunction violated the public interest.

United States District Court for the Northern District of California Judgement: Permanent injunction The court permanently enjoined the defendants from distributing marijuana.

Gonvalez versus Raich. Also, Ashcroft versus Raich No. 03-1454

Summary The U.S. Supreme Court determined that the Federal government may, under the Commerce Clause, enforce the law against marijuana possession in the case of a person who grows marijuana for personal medical use in a state that allows the use of medical marijuana.

Brief for Petitioners It is argued that Congress has approved regulated interstate commerce and the market for controlled substances. The distribution of marijuana violates these laws.

Brief of Respondents The respondents are patients with life-threatening or serious and painful conditions who use marijuana solely for medical purposes as recommended by their physicians. They seek a preliminary injunction to prevent actions brought against them stating they violated the Federal Controlled Substances Act.
The respondents argue that the Commerce Clause does not apply to a medicine that is recommended by a physician and authorized in state law.
It was argued that Angel Raich would die without using marijuana. The U.S. Supreme Court has rejected a medical necessity argument for distributing and manufacturing marijuana. This is a medical necessity for a respondent.

Reply Brief for the Petitioners It was argued that marijuana has no accepted medical use. It is the duty of the government to prevent this distribution of any illegal Schedule I drug for any purpose. Nothing in the California law states marijuana is now legal under Federal law.
It was argued there is no distinction in the Commerce Clause that distinguishes between medical versus recreational use of a product.

Respondents’ Brief in Opposition It is argued that many health care professionals have found that marijuana is an appropriate medicine to some people who cannot use alternatives. One patient, Diane Monson, grew her own marijuana. Another patient, Angel Raich, is unable to grow her own marijuana due to her physical condition. Her caregivers grew marijuana for her. These plants for were personal medical use, used legally under state law, and involved no violation of interstate commerce. Their physicians stated that marijuana is a required medicine for both these patients.

Arguments Before the U. S. Supreme Court Acting Solicitor General Paul Clement argued that home grown marijuana for medical use could be diverted into interstate commerce. Clement claimed this is an illegal $10.5 billion interstate market. While these particular individuals may not have produced marijuana that entered interstate comment, Clement argued they are of a class where their marijuana could be so diverted.
Clement argued that raw, home grown marijuana contains 400 chemicals and that not all these chemicals can be beneficial, unlike produced medicines such as Marinol. He also argued that smoking marijuana is not a good means to deliver a drug and that while Marinol takes longer to enter the bloodstream, this is good to prevent abusing the medicine.
Randy Barnett, attorney for the respondent, argued the class he is defending are non-economic and are all intrastate. They are not part of the marketplace as they grown their own marijuana for health purposes.


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