Pubdate: Fri, 30 Mar 2001
Source: Bergen Record (NJ)
Copyright: 2001 Bergen Record Corp.
Contact:  http://www.bergen.com/
Details: http://www.mapinc.org/media/44
Author: ANNE GEARAN

MARIJUANA PROPONENTS FACE JUSTICES

WASHINGTON -- The Supreme Court took a first look at prescription pot 
Wednesday, hearing arguments on an issue that has pitted the federal 
government against cancer, AIDS, and other patients who sometimes regard 
marijuana as a wonder drug.

So far as the federal government is concerned, marijuana is illegal and 
should remain so. Federal enforcement efforts have led to confrontations 
and arrests in California and other Western states.

The issue for an openly skeptical Supreme Court is whether a patient's need 
for marijuana trumps a 1970 federal law that classifies it as an illegal 
substance with no known medical value.

President Bush supports federal prohibitions on marijuana, but also 
respects states' rights to pass voter initiatives, as was the case in 
California, spokesman Ari Fleischer said.

"The president is opposed to the legalization of marijuana, including for 
medicinal purposes," he said Wednesday.

Lawyers for the Oakland Cannabis Buyers Cooperative in California want to 
make what they call a "medical necessity" defense in federal court, and 
argue that federal judges and juries have the power to decide if the drug 
is warranted.

Several justices seemed to think that approach was a stretch at best.

"I thought the medical necessity defense was for an individual," Justice 
Antonin Scalia said. "You would extend it to the person prescribing the 
drug, and even to opening a business" to dispense it.

"That's a vast expansion beyond any necessity defense I've ever heard of," 
Scalia said.

Justice Anthony M. Kennedy seemed to agree.

"You're asking us to hold that this defense exists . . . with no specific 
plaintiff before us, no specific case," Kennedy told the club's lawyer, 
Gerald Uelmen.

The court's ruling is expected by the end of June.

A ruling for the Oakland club would allow special marijuana clubs to resume 
distributing the drug in California, which passed one of the nation's first 
medical marijuana laws in 1996.

A ruling for the federal government would not negate the California voter 
initiative, but effectively would prevent clubs such as Oakland's from 
distributing the drug openly.

One of the most vocal opponents of legalized prescription marijuana is 
Barry McCaffrey, the Clinton administration's drug policy director. He once 
dismissed the practice as "Cheech and Chong medicine," a reference to the 
comedy team that celebrated pot-smoking.

Advocates of medical marijuana say the drug can ease side effects from 
chemotherapy, save nauseated AIDS patients from wasting away, or even allow 
multiple sclerosis sufferers to rise from a wheelchair and walk.

There is no definitive science that the drug works, or works better than 
conventional, legal alternatives. Nonetheless, nine states have laws 
allowing the legal use of marijuana to treat a host of ailments.

Scalia challenged Uelmen to list medical emergencies that could require 
marijuana treatment.

"Death, starvation, blindness," Uelmen began.

"Stomachache?" Scalia interrupted with an edge of sarcasm.

Representing the government, Barbara Underwood, a holdover from the Clinton 
administration Justice Department, said the 1970 Controlled Substances Act 
"leaves no room for the Oakland Cannabis Buyers Cooperative" and others to 
act as "marijuana pharmacies."

Bush's choice as solicitor general, the government's chief advocate before 
the Supreme Court, Theodore Olson, has not been confirmed by the Senate.

Several states are considering medical marijuana laws, and Congress may 
revisit the issue this year. A measure to counteract laws like California's 
died in the House last year.

Activists on both sides gathered outside the court.

The Clinton administration sued to stop distribution by the Oakland group 
and five other California clubs in 1998.

U.S. District Judge Charles Breyer, brother of Supreme Court Justice 
Stephen Breyer, sided with the government. All of the clubs except the 
Oakland group eventually closed down, and the Oakland club turned to 
registering potential marijuana recipients while it awaited a final ruling.

The 9th U.S. Circuit Court of Appeals reversed the decision, ruling that 
medical necessity is a legal defense. Charles Breyer followed up by issuing 
strict guidelines for making that claim.

Stephen Breyer will not participate as the other eight justices consider 
their ruling. Should the court divide 4-4, the appeals court ruling would 
stand.

Voters in Arizona, Alaska, Colorado, Maine, Nevada, Oregon, and Washington 
also have approved ballot initiatives allowing the use of medical 
marijuana. In Hawaii, the Legislature passed a similar law and the governor 
signed it last year.
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MAP posted-by: Keith Brilhart