Pubdate: Tue, 15 May 2001
Source: Los Angeles Times (CA)
Copyright: 2001 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248

TOP COURT SAYS NO TO MEDICAL MARIJUANA USE

The Law: Ruling Undercuts Initiatives Adopted In California And Elsewhere. 
But Distributors, And Some Law Enforcers, Say Practice Will Persist.

WASHINGTON--The Supreme Court dealt a defeat Monday to the medical 
marijuana movement, ruling that federal law prohibits dispensing the drug 
to seriously ill patients to relieve their pain and nausea.

As a legal matter, the 8-0 ruling all but invalidates the measures adopted 
in California and eight other states that give sick people a "right" to 
obtain marijuana for medical purposes.

Because federal law trumps state laws, Monday's ruling makes clear that the 
distribution of marijuana is illegal throughout the United States.

However, it is not clear that federal authorities will be able to enforce 
their prohibition on marijuana. Advocates of medical marijuana said they 
are confident that jurors in California and the other states will not 
convict those who are charged with giving marijuana to sick people.

Moreover, federal agents are spread too thin to enforce the law, they said.

"There are 700 [Drug Enforcement Administration] agents in California and 
1.5 million marijuana users," said Bill Zimmerman, executive director of 
the Americans for Medical Rights in Santa Monica.

Nonetheless, Monday's ruling could force the closure of the handful of 
so-called buyers cooperatives, or cannabis clubs, that sprouted after the 
California initiative, Proposition 215, won approval in 1996.

U.S. attorneys will be able to go to court and seek orders shutting down 
these organizations. Violators of such orders can be fined or jailed. This 
enforcement method puts the issue directly before federal judges and allows 
authorities to avoid a jury trial.

California was the first state in the nation to approve a measure giving 
seriously ill people a "right to obtain" marijuana for medical purposes. 
Monday's decision also applies to the eight other states that have similar 
measures: Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and 
Washington.

Nathan Barankin, a spokesman for California Atty. Gen. Bill Lockyer, said 
that "it doesn't appear" that the court has thrown out the California 
proposition. The attorney general's office will meet with local law 
enforcement officials in coming days to map out a state response to the 
court's ruling.

But Marsha Cohen, a professor at UC Hastings College of the Law and a 
specialist in pharmacy law, said the decision puts a cloud over the 
California law and "makes what Proposition 215 was attempting to give a 
certain category of sick people in California more difficult."

The clubs had mushroomed to fill a hole in the ballot measure, Cohen said: 
basically the lack of any specific way that marijuana could be distributed 
legally to the seriously ill.

"What the clubs have been doing is not even legal under state law, and yet 
state enforcement officials have looked the other way," she said. "The Feds 
have stopped looking the other way. Now that they have this decision, I 
think it will embolden them to try to shut down the clubs."

The case that reached the Supreme Court grew out of a federal move to shut 
down six cannabis clubs in the Bay Area.

In 1998, U.S. attorneys brought a civil suit seeking to close the Oakland 
Cannabis Buyers Cooperative for violating federal law. U.S. District Judge 
Charles Breyer, younger brother of Supreme Court Justice Stephen G. Breyer, 
agreed and ordered the closure.

But the U.S. 9th Circuit Court of Appeals sided with the cooperative and 
said the drug laws include an implied exception for "medical necessity."

In response, Judge Breyer allowed the club to give marijuana to patients 
under extremely limited circumstances. They must be "seriously ill and will 
suffer imminent harm" without it, and there must be "no reasonable legal 
alternative" that would alleviate their suffering.

For the Justice Department and the Supreme Court, that exception went too far.

In August, the Clinton administration asked the justices to block Breyer's 
order, and the court did so. And on Monday, the court officially overruled 
the 9th Circuit in the case of U.S. vs. Oakland Buyers Cooperative, 00-151.

Justice Clarence Thomas, writing for the court, said federal drug laws 
leave no room for compassionate exceptions to zero-tolerance federal drug laws.

Congress' decision in 1970 to add marijuana to its list of illegal drugs 
"reflects a determination that marijuana has no medical benefits," Thomas 
said. "Indeed, for the purposes of the Controlled Substances Act, marijuana 
has no currently accepted medical use at all."

Thomas wrote the opinion on behalf of himself, Chief Justice William H. 
Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. 
Kennedy. Three liberal justices concurred in the result and stressed the 
ruling dealt narrowly with distribution of marijuana, not its use.

In a footnote, Thomas struck back and disagreed with the liberals. "The 
very point of our holding is that there is no medical necessity exception 
to the prohibitions at issue even when the patient is seriously ill and 
lacks alternative avenues for relief," he wrote. This suggests the majority 
believes using marijuana is illegal as well.

Justice Breyer abstained because of his brother's role.

Despite the ruling, the medical marijuana laws passed by the states retain 
some practical significance.

Those measures put a limit on local police and state prosecutors. 
California's measure bars law enforcement officials from arresting or 
prosecuting those who give marijuana for the purpose of comforting someone 
who is seriously ill.

As a result, a police officer in the Los Angeles area would not be 
authorized to arrest a person with AIDS or cancer who has marijuana, even 
though a federal drug agent might arrest the same person for the same conduct.

This conflict between federal and state law enforcement is likely to cause 
much confusion and more litigation.

The court's ruling does not squarely address whether the use of marijuana 
by sick people is illegal.

Zimmerman, the medical marijuana activist, noted that the ruling focused 
narrowly on the distribution of marijuana. "This does not go to an 
individual's right to use or grow marijuana," he said.

Perhaps what is most striking in the Supreme Court's opinion is that it 
does not discuss states' rights, which goes to the heart of the issue. 
Often, the court's conservative majority champions states' rights when a 
conflict arises with federal laws.

Six years ago, the justices, on a 5-4 vote, struck down a federal law that 
made it a crime to a have a gun near a school and opined that crime is 
ordinarily a matter for the states.

However, the same five justices joined together Monday to rule that drug 
laws are ordinarily a federal matter, not a state issue.

In his separate opinion, Justice John Paul Stevens tweaked the 
conservatives for their "unfortunate" failure in this case to "show respect 
for the sovereign states that comprise our Federal Union."

Meanwhile, debate about the virtues of marijuana continues.

The California Medical Assn. says marijuana "may be appropriate under 
certain circumstances," and it sharply criticized the Supreme Court's 
ruling for restricting the options available to physicians.

"Both Congress and the courts should defer these intensely personal and 
potentially life-saving decisions to physicians and their patients," said 
Dr. Frank Staggers, president of the association.

But Dr. Gary Cohan, who treats AIDS patients, says he relies on Marinol, an 
Federal Drug Administration-approved drug that includes the active 
ingredients in marijuana. "It is a pill, a purified form of the drug, and 
it cuts nausea. But you don't have the combustion of a weed," said Cohan, 
who practices at the Pacific Oaks Medical Group in Beverly Hills.

Zimmerman, the medical marijuana activist in Santa Monica said smoking the 
drug is more effective.

"Marinol is not a good substitute," he said. "If it were, why would tens of 
thousands of patients risk arrest to get medical marijuana."
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