On Monday, the 9th U.S. Circuit Court of Appeals told a federal judge to rethink his absolute ban on drug distribution at some northern California marijuana clubs, and consider an exemption for patients who show a serious medical need and no legal alternative.
Though not as broad, the court's language was consistent with a 1996 California initiative allowing patients with a doctor's recommendation to possess and use marijuana for serious illnesses without prosecution under state law.
It's also consistent with medical marijuana laws in four other states Arizona, Oregon, Washington and Alaska in the nine-state circuit.
For those states and Nevada, which is considering a similar law the ruling appears to recognize a defense of "medical necessity:" the need to violate the federal drug law in order to prevent a more serious harm.
That conflicts with a U.S. Justice Department argument that no claim of necessity could justify use of a drug federally classified as dangerous and having no approved medical purpose.
"For the first time, we have a clear ruling that the federal Controlled Substances Act is not an absolute bar to the distribution of medical cannabis," said Gerald Uelmen, a Santa Clara University law professor and lawyer for the Oakland Cannabis Buyers' Cooperative.
The Justice Department did not return a telephone call seeking comment.
Medical marijuana clubs sprang up around California after the November 1996 approval of Proposition 215, which allowed patients with serious illnesses to obtain and use marijuana if their doctors approved. The drug is used to relieve pain and other effects of AIDS, cancer and certain other diseases and their treatments.
The Justice Department responded by suing six northern California clubs, saying the absolute federal ban on marijuana distribution overrode the proposition.
U.S. District Judge Charles Breyer agreed, issuing a contempt order last year that forced four of the clubs to stop distributing marijuana.
Two of the clubs, in Fairfax and Ukiah, remain open because the government failed to present evidence that they were distributing marijuana at the time.
Other informal organizations scattered around the state also continue to supply medicinal marijuana. The Oakland club also has resumed limited operations.
In its 3-0 ruling, the court said the government "has yet to identify any interest it may have in blocking the distribution of marijuana to those with medical needs."
The panel said the government "has offered no evidence to rebut (a marijuana club's) evidence that cannabis is the only effective treatment for a large group of seriously ill individuals."
The court said patients would have to show they faced imminent harm, from a serious medical condition, and have found that legal alternatives to marijuana dn't work or cause intolerable side effects.
The court said Breyer would be justified in granting the exception, but did not order it issued.