JUSTICES SET BACK USE OF MARIJUANA TO TREAT SICKNESS

The Supreme Court ruled today that federal law does not allow a
"medical necessity" exception to the prohibition on the distribution
of marijuana. The 8-to-0 decision dealt a setback, but not a
definitive blow, to a movement that has passed medical marijuana
ballot initiatives in eight states.

The ruling did not overturn the state initiatives or address any
question of state law. Rather, the court ruled that marijuana's
listing by Congress as a Schedule I drug under the Controlled
Substances Act meant that it "has no currently accepted medical use in
treatment in the United States."

The court said in an opinion by Justice Clarence Thomas that the
federal appeals court in San Francisco misread federal law when it
ruled last year that an Oakland marijuana cooperative could raise a
medical-necessity defense against the federal government's effort to
shut down the pharmacylike cooperative.

The cooperative distributes marijuana to patients whose doctors say
they need it to ease the symptoms of cancer, AIDS and other illnesses.

The Justice Department brought the case as a request for an injunction
rather than as a criminal prosecution, which would have required a
jury trial. Since nearly three-quarters of Oakland's voters supported
California's Proposition 215, the 1996 initiative that enacted the
Compassionate Use Act to permit the medical use of marijuana, the
government would have faced -- and, indeed, still faces -- a daunting
challenge in finding a jury willing to convict someone for making
marijuana available for that purpose.

The Oakland Cannabis Buyers' Cooperative was set up with the blessing
of the city government and the police department.

The question before the Supreme Court today was a relatively narrow
one: not the validity of the California initiative itself but of the
federal courts' response to the government's request for an
injunction. The United States Court of Appeals for the Ninth Circuit
ordered the trial judge, Charles Breyer of Federal District Court, to
tailor an injunction that would permit those with a serious medical
condition that could be alleviated only by marijuana to have continued
access to the drug.

The Clinton administration, asserting that the Ninth Circuit had
committed a serious error that threatened to undermine federal drug
laws, persuaded the Supreme Court to grant a stay of Judge Breyer's
ruling last August. Justice Stephen G. Breyer did not participate in
any phase of the case because Judge Breyer, who sits in San Francisco,
is his younger brother.

Given the narrowness of the question before the court, the decision
today left a number of questions unanswered. Among these were the
availability of a medical necessity defense to individual patients who
grow or possess marijuana for their own use, as opposed to a mass
distributor like the Oakland cooperative, as well as whether state
governments could carry out their medical marijuana initiatives by
going directly into the distribution business. Two states, Nevada and
Maine, are considering such a system.

Alaska, Arizona, Colorado, Oregon and Washington, in addition to
California, Nevada and Maine, have also passed medical marijuana
initiatives in the last few years. Advocates for medical marijuana
said today that this campaign would continue, with many noting that
nearly all marijuana prosecutions are handled at the state rather than
federal level.

Last month, a jury in state court in Sonoma County, Calif., acquitted
a man who offered a medical-necessity defense to a charge of
cultivating 850 marijuana plants.

Advocates of the medical use of marijuana say the drug is effective in
combatting the nausea of chemotherapy and the wasting syndrome of
AIDS. The California Medical Association, which supports the
therapeutic use of marijuana under a doctor's direction, said today it
was "very disappointed" in the ruling because of the organization's
"core belief that patients should not suffer unnecessarily when other
options fail."

There is a debate over whether a legal drug called Marinol, a
synthetic version of the active ingredient in marijuana, offers the
relief that some patients find in marijuana.

Kevin Zeese, president of Common Sense for Drug Policy, an advocacy
group here, predicted that the decision would "heighten the conflict
in both legal and political terms" and could make it difficult for
prosecutors to win a conviction in any marijuana case. Mr. Zeese said
the distribution clubs were working on such new strategies as
maintaining a "grow room" where patients would own their own marijuana
plants, thus avoiding the potential legal pitfall of
distribution.

Justice Thomas's opinion, United States v. Oakland Cannabis Buyers'
Cooperative, No. 00-151, contained some broad language suggesting that
its analysis meant there could be no acceptable medical use of
marijuana in any setting, not only in the context of distribution by
large organizations. For that reason, Justices John Paul Stevens,
David H. Souter and Ruth Bader Ginsburg refused to sign his opinion,
writing in a separate concurring opinion that large-scale distribution
was the only issue the case presented and on which the court would
validly rule.

"Most notably, whether the defense might be available to a seriously
ill patient for whom there is no alternative means of avoiding
starvation or extraordinary suffering is a difficult issue that is not
presented here," Justice Stevens wrote in an opinion that the other
two justices joined.

California filed a brief in support of the Oakland cooperative,
asserting that the federal law "unduly intrudes into California's
traditional right to regulate for the health and welfare of their citizens."

Justice Stevens said Justice Thomas's opinion showed inadequate
"respect for the sovereign states that comprise our federal union."
This provoked a response from Justice Thomas, who said: "Because
federal courts interpret, rather than author, the federal criminal
code, we are not at liberty to rewrite it."

When he was governor of Texas, President Bush said that he was
personally opposed to legalizing marijuana for medical use but that
states should have the right to decide for themselves. "I believe each
state can choose that decision as they so choose," he said in October
1999, according to an article in The Dallas Morning News that Justice
Stevens cited in his opinion today.