Pubdate: Thu, 29 Mar 2001
Source: Fresno Bee, The (CA)
Copyright: 2001 The Fresno Bee
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Author: Michael Doyle, Bee Washington Bureau

MEDICAL POT IN SUPREME COURT

Justices Question Whether Need Should Beat Laws.

WASHINGTON -- Skeptical-sounding U.S. Supreme Court justices Wednesday 
confronted the sobering question of medical marijuana use.

Watched closely by clients of the Oakland Cannabis Buyers' Cooperative, 
some of whom already had taken a therapeutic morning toke, the nation's 
highest court raised doubts about whether medical necessity should trump 
federal drug laws.

"You're asking us to say this defense exists in broad, sweeping terms," an 
unconvinced Justice Anthony Kennedy told the cannabis club's lawyer.

The Oakland cannabis club wants to keep providing marijuana to its 4,500 
registered members. Because the club's activities are protected under state 
law but still subject to federal law, the club also wants to be able to 
deploy the legal defense of "medical necessity" when facing federal 
prosecution.

"It's a classic illustration of a 'choice of evils' defense," cannabis club 
lawyer Gerald Uelman said during the hourlong oral argument.

In other words: Breaking marijuana laws is less harmful than the death or 
serious disability that medical marijuana proponents say they are avoiding 
by use of the drug. Courts have recognized "necessity" as a defense for 
centuries. To succeed, the act typically must be the lesser of two evils, 
necessary to avoid imminent harm, and lacking in legal alternatives.

The San Francisco-based 9th U.S. Circuit Court of Appeal determined that 
such a defense could be raised by the cannabis club, whose activities were 
first blocked in a civil action brought by the Clinton administration. The 
Bush administration has followed through, claiming that the Controlled 
Substances Act left no room for such a medical-necessity defense.

"It undermines the ability of the act to protect the public," Acting 
Solicitor General Barbara Underwood told the court, adding that "the co-op 
and its members have alternatives to violating the law."

The Oakland Cannabis Buyers' Cooperative members in the packed Supreme 
Court chambers quietly disagreed. Yvonne Westbrook, for one, lives in the 
East Bay city of Richmond and smokes marijuana to alleviate distress from 
multiple sclerosis. Standard pharmaceutical drugs make her too wiped out to 
function, Westbrook said before rolling her wheelchair into court.

Creighton Frost, a 47-year-old San Ramon resident and former pack-animal 
wrangler, took his first marijuana puff Wednesday about 7 a.m. -- four 
hours before the court's arguments began. Throat cancer forced the removal 
of his voice box. He inhales the marijuana smoke, which he says enables him 
to eat and sleep, through a hole in his throat that he then covers with a 
finger to keep the smoke in. The doctors give him two to four years to 
live; he gives himself longer.

"We have a right to die comfortably," Frost said before oral arguments. "We 
have a right not to fight with our medications."

The court's interest, though, was not in such professed rights, but in 
which legal principles apply. Kennedy termed the notion of a medical 
necessity defense "a huge rewriting of the statute." His fellow swing vote 
on the court, Justice Sandra Day O'Connor, likewise sounded doubtful when 
she referred to a "blanket exception" to the federal Controlled Substances 
Act and the "kind of a blanket medical-necessity defense" authorized by the 
9th Circuit.
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