Pubdate: Sun, 01 Apr 2001
Source: Minneapolis Star-Tribune (MN)
Copyright: 2001 Star Tribune
Contact:  http://www.startribune.com/
Details: http://www.mapinc.org/media/266
Author: Patt Morrison, Los Angeles Times

MEDICAL MARIJUANA? DON'T HOLD YOUR BREATH

Some of the justices of the U.S. Supreme Court are getting up in 
years. Odds are that they know someone, or soon will know someone, 
who has some wasting, killing ailment.

Maybe that crossed at least one of the nine minds this week -- 
perhaps Anthony Kennedy's, or Sandra Day O'Connor's, the one from 
California and the other from Arizona, two of nine states with laws 
allowing the medical use of marijuana for just such illnesses, laws 
the Supreme Court has now begun scrutinizing.

California is lugging the legal load with a case named "U.S. vs. 
Oakland Cannabis Buyers' Cooperative," but the other states are 
taking careful notes.

Since 1970, when all those hippies were getting stoned and even 
making jokes about it, federal law has pilloried marijuana as a drug 
of no redeeming social value. Legally, it is worse than cocaine. It 
is worse than opium. And here come California voters and Arizona 
voters, wanting to make it available to people with cancer and AIDS 
and other ailments.

Since California's Proposition 215 passed in 1996, the feds haven't 
been able to figure out how to bust it in the chops. President Bill 
Clinton threatened to yank the prescription-writing powers of doctors 
who recommended marijuana. He wagged that finger of his in their 
faces and warned darkly of jail time. The government sent out federal 
injunctions to stop "cannabis clubs" from doling out marijuana.

To two federal courts, the "medical necessity" argument sounded like 
a reasonable defense. But last week, the Supremes did not sound as if 
they would sing harmony with their lesser brethren. They are likely 
to rule that this federal law trumps any number of initiatives, and 
Californians can't hand out marijuana, even to the sickly, and that 
judges can't craft an exception to let them do it.

Acting U.S. Solicitor General Barbara Underwood told the court 
ringingly, "There is no accepted medical use of marijuana." As she 
spoke, down at Ole Miss, the University of Mississippi, the federal 
government was raising up another lush crop of pot. Each month, under 
court order, it rolls marijuana joints for six or eight ailing 
Americans, who smoke them as a "medical necessity."

Government -- the greatest show on earth. For a Supreme Court that 
has the reputation of never encountering a federal law it doesn't 
want to turn over to the states, medical marijuana initiatives should 
be a betting man's dream.

Clark Kelso is a professor at McGeorge School of Law at the 
University of the Pacific. He clerked for Justice Kennedy, and he 
thinks the courts will blow the bets and side with federal drug law, 
not the states: "The court's most likely response is to direct 
proponents (of medical marijuana) to Congress. If Congress wants to 
create an exception, that's what they're there for."

California's Legislature did have the guts to pass medical marijuana 
laws twice, but Gov. Pete Wilson vetoed them. But a vote for even 
considering medical marijuana is more likely to get twisted by the 
shorthand of politics into "my opponent the dope fiend," which is why 
we have so many initiatives: Voters, not politicians, are left to 
make the hard calls. (In May, California researchers expect to begin 
spending $3 million in state money to study the medicinal value of 
pot.)

Whatever the Supremes do, Kelso muses, the medical marijuana quandary 
"is another example of the somewhat arbitrary ad hoc nature" of the 
war on drugs, "where we've demonized certain types of substances, and 
it's difficult to have a rational debate on certain appropriate and 
inappropriate uses, and that's what has happened with medical 
marijuana."

For the record, in the 1980s, after one Supreme Court nominee washed 
out because he had smoked marijuana, the next nominee, future Justice 
Kennedy, declared to the "have you ever smoked" question, "No, 
firmly, no."
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MAP posted-by: Kirk Bauer