I'm trying to write a brief (for a class, of course) trying to get a guy off the hook for growing dope (for medicinal purposes, of course) and giving it to all of his 'sick' buddies. Problem is, federal law is pretty much cut-and-dried on the topic -- he's dead meat. In a case two years ago the Supreme Court came straight out and said that there's no medical necessity defense for distribution. Period. Unanimous decision. Odd, since that seems to be what we're supposed to be focused on. Well, I googled around a bit, and found this piece concerning Lawrence v. Texas, the case that came out this summer overruling Bowers v. Hardwick and making homosexuals everywhere very happy. The author of the article, Randy Barnett, is a fairly prominent libertarian law professor and contributor to the Volokh Conspiracy. Anyway, he argues that with Lawrence, the court has made a shift away from the "right to privacy" and toward, instead, a "right to liberty". Reading the case, it's hard to disagree with him. Not only that, but Barnett specifically mentions medical marijuana cases as the sort of defendants who might be most interested in this result.
Then I thought back to Con Law and remembered Stenberg v. Carhart, the partial birth abortion case from a few years back. Since the court there seemed to overturn the partial birth abortion law based on the lack of an emergency provision, maybe I could find something helpful, and bingo:
the State cannot prohibit a person from obtaining treatment simply by pointing out that most people do not need it.Just now looking, I found another good one:
Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary.Certainly the New England Journal of Medicine, along with the other groups that have endorsed medical marijuana, constitute "a significant body of medical opinion". But just one year later, in a medical marijuana case, the court said:
It is clear from the text of the Act that Congress has made a determination that marijuana has no medical benefits worthy of an exception. The statute expressly contemplates that many drugs “have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people,” §801(1), but it includes no exception at all for any medical use of marijuana.Of course, only one person signed on to both of these opinions -- O'Connor. Excuse me -- what was she thinking?
Boy, talk about a generic blog. What can I say, I'm not a design guy. My brother says he'll design a template for me if I want...
These are the sites that I read the most:
Marvelous ways to waste an afternoon