Pubdate: Thu, 29 Mar 2001 Source: Fresno Bee, The (CA) Copyright: 2001 The Fresno Bee Contact: http://www.fresnobee.com/man/opinion/letters.html Website: http://www.fresnobee.com/ Forum: http://www.fresnobee.com/man/projects/webforums/opinion.html 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. - --- MAP posted-by: Jo-D