Pubdate: Thu, 29 Mar 2001
Source: USA Today (US)
Copyright: 2001 USA TODAY, a division of Gannett Co. Inc
Contact:  http://www.usatoday.com/news/nfront.htm
Details: http://www.mapinc.org/media/466
Author: Joan Biskupic

MEDICAL MARIJUANA USE CHALLENGED

Court Reluctant To Override Drug Law Despite Pleas That It Eases Patients' Pain

WASHINGTON -- The Supreme Court appeared unconvinced Wednesday by arguments 
that seriously ill patients should be able to use marijuana to ease their 
suffering without fear of violating federal drug law.

During a vigorous hour-long session, some justices seemed sympathetic to 
the plight of patients who say they have no alternatives. But a majority 
did not appear ready to effectively override federal law by allowing a 
"medical necessity" defense for marijuana use.

The case before the court rose from California, where voters in 1996 
adopted a proposition to allow medical marijuana. The U.S. government 
responded by moving to block the state law's effect, leading to one of the 
high court's most-watched cases this term.

The case pits public health groups and civil libertarians against anti-drug 
forces and parents' organizations. It measures the nation's "war on drugs" 
against efforts to find alternative therapies for cancer, AIDS, multiple 
sclerosis and other complex illnesses.

Besides California, eight other states have laws allowing the medical use 
of marijuana. The federal government says that although those initiatives 
may exempt marijuana use from state prosecution, federal anti-drug laws 
still apply.

Acting U.S. Solicitor General Barbara Underwood urged the court to reject 
arguments for a "medical necessity" defense that would spare patients and 
their marijuana providers from federal prosecution or civil lawsuits. She 
said that in outlawing marijuana, Congress rejected the idea that the drug 
has any benefits.

"There is currently no accepted use for the drug," she said, adding that it 
also is highly likely to be abused. She asked the justices to reverse a 
ruling by the U.S. Court of Appeals for the 9th Circuit that there could be 
a common-law "medical necessity" defense to federal drug statutes. 
Reversing an order that shut down cannabis clubs, the appeals court cited a 
"public interest in the availability of the doctor-prescribed treatment 
(to) relieve the pain and suffering of a large group of persons."

Lawyer Gerald Uelmen, representing the Oakland Cannabis Buyers' Co-op, 
argued that the court should adopt that rationale. Uelmen said people 
facing "imminent harm" should be able to take advantage of marijuana's 
benefits. The drug is known for easing the nausea that comes with 
chemotherapy, stimulating the appetite of AIDS patients and relieving the 
misery of other conditions such as multiple sclerosis.

"The (medical necessity) defense should be available to any patient in any 
state," Uelmen said, regardless of whether a state has legalized marijuana.

"It's a sweeping proposition," declared Justice Anthony Kennedy. Justice 
Sandra Day O'Connor was similarly skeptical of having a "blanket medical 
necessity defense" that could supersede federal law that bans the 
possession or distribution of marijuana.

Chief Justice William Rehnquist asked how truly desperate patients might be 
screened from those who simply want to use marijuana. He was sympathetic to 
the government's argument that if Congress had believed there was a valid 
medical use, it would not have included it under the strictest 
controlled-substances laws. Other justices focused on the needs of 
seriously ill people for whom conventional treatments fail.

"Should we assume there are no such people?" Justice John Paul Stevens 
asked. Underwood said yes.

Justice Ruth Bader Ginsburg, a recent cancer survivor and chemotherapy 
patient, asked about evidence in court filings that the drug has been used 
to relieve patients' vomiting and other conditions. "Am I wrong in thinking 
there has been quite a bit of this going on in the medical profession?"

Underwood said there are alternatives to the drug.

Justice David Souter focused on the government's effort to undermine 
California's Proposition 215 by seeking an injunction in federal court to 
block cannabis clubs from distributing marijuana, rather than by 
prosecuting users or providers. Souter questioned whether the government 
did that because it could never win a prosecution in a jury trial. He cited 
the popularity of California's medical marijuana law.

Underwood said the Justice Department wanted to resolve the dispute with a 
single move, particularly because it adamantly disputes the medicinal 
claims. In this case, a district court judge rejected the clubs' 
"necessity" defense but then was overturned by the 9th Circuit. (The 
district court judge was Charles Breyer, brother of Supreme Court Justice 
Stephen Breyer. Justice Breyer recused himself from Wednesday's case.)

The tension over the case was evident in the many briefs filed here. The 
National Organization for Reform of Marijuana Laws told the justices that 
"this case is not about a right to get 'stoned,' . . . (but) the right of 
personal medical choices of the chronically and terminally ill." On the 
other side, the Family Research Council said legalizing medical marijuana 
would change "attitudes toward the perceived dangerousness of illicit drug 
use."

Also Wednesday, the justices considered whether U.S. copyright law requires 
publishers to get permission from freelance writers before putting the 
writers' stories from print editions into electronic databases.

The New York Times, backed by media groups including Gannett Co., which 
publishes USA TODAY, says the electronic versions made available to 
commercial services are successors to microfilm and microfiche. The Times 
says they are not new uses of the work that infringe on an author's work. 
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