SUPREME COURT AGREES TO RULE ON PRESCRIPTION POT

Decision Will Affect Seriously Ill Patients

The Supreme Court jumped into the battle over medical marijuana in
California and other states Monday, agreeing to decide whether seriously
ill patients and their suppliers can be exempted from federal drug laws.

The justices agreed to review the Clinton administration's appeal of an
unprecedented lower-court ruling last year that allowed the Oakland
Cannabis Buyers' Cooperative to distribute marijuana to patients who showed
a medical necessity.

Justice Department lawyers argued that allowing an exemption would flout
federal drug laws and defy Congress' determination that marijuana has no
currently accepted medical use.

But lawyers for the Oakland cooperative contended the drug laws did not
repeal a longstanding legal doctrine allowing violation of a lesser
criminal law to prevent a greater harm -- in this case, severe pain and the
sometimes life-threatening side effects of therapies for AIDS and cancer.

The ruling, due by the end of next June, is crucial for the 30 or more
organizations around the state that have sprung up since passage of the
1996 initiative to supply patients with medical marijuana. Only a handful
have been targeted by the federal government, but that could change if the
court rules in the government's favor.

"We have faith, when the Supreme Court considers this case on the merits,
that it will consider the needs of the patients who are suffering," said
Jeff Jones, executive director of the Oakland cooperative.

More broadly, the ruling may determine how far a state can go in making an
otherwise-illegal drug available to its residents for medical purposes.

Eight other states have medical-marijuana laws similar to California's Prop.

215: Alaska, Arizona, Hawaii, Maine, Oregon, Washington, Nevada and Colorado.

Prop. 215, approved by 56 percent of California voters in November 1996,
allowed patients to obtain and use marijuana at their doctors'
recommendation without being prosecuted under state law.

Clinton administration drug warriors attacked the California law before its
passage and have relentlessly fought its implementation.

Texas Gov. George W. Bush, by contrast, has said he believes states should
choose whether to allow the use of marijuana for medical purposes.

"I believe each state can choose that decision as they so choose," Bush
said while campaigning in Seattle in October 1999.

Shortly after Prop. 215 passed, federal authorities threatened to revoke
the prescription license of any doctor who recommended marijuana, but were
thwarted by a federal judge. The government also moved against newly formed
clubs in Oakland, San Francisco and elsewhere that enrolled patients as
members and provided them marijuana based on notes from their doctors.

Though the loosely drafted Prop. 215 left the clubs' status unclear under
state law, some have reached agreements with local authorities to regulate
their operations and avoid prosecution -- an arrangement that, in Oakland's
case, includes designation of the 2,000-member cooperative as an agent of
the city. But as the Justice Department pointed out, state law and local
accommodations are trumped by federal laws that make marijuana distribution
a felony.

The Clinton administration won an injunction in 1998 that closed marijuana
clubs in Oakland and San Francisco, but was set back in September 1999 when
the 9th U.S. Circuit Court of Appeals became the first in the nation to
apply an ancient legal defense -- necessity -- to federal drug laws.

The defense, often argued in criminal cases but rarely successful, allows a
person to break the law when that is the only way to prevent a graver harm.
The appeals court said it could be used by patients who face imminent harm
from a serious medical condition and have found that legal alternatives to
marijuana don't work or cause intolerable side effects.

The government "has offered no evidence to rebut (a marijuana club's)
evidence that cannabis is the only effective treatment for a large group of
seriously ill individuals," said the three-judge appeals panel.

Ordered by the court to reconsider his injunction, U.S. District Judge
Charles Breyer ruled in July that the Oakland cooperative could distribute
marijuana to patients who could show a medical necessity.

Breyer is the brother of Supreme Court Justice Stephen Breyer, who has
removed himself from consideration of the case.

The cooperative, which has been operating as a legal marijuana store and
patient referral center, was still reviewing its membership list in August
when the Supreme Court blocked Breyer's order on a 7-1 vote.

That action foreshadowed the court's agreement Monday to take up the
government's appeal of the 9th Circuit ruling.

In their Supreme Court appeal, Justice Department lawyers said recognition
of a medical necessity defense threatens the government's ability to
enforce the federal drug laws. Such a defense could be invoked by
traffickers in harder drugs, they said.

The federal Controlled Substances Act allows medical use of marijuana only
in tightly regulated federal experiments -- like one approved last week for
60 AIDS patients in San Mateo County -- and forbids all other uses,
government lawyers contended.

(c)2000 San Francisco Chronicle Page A1