TOP COURT REJECTS POT FOR HEALTH

Oakland Medicinal Club Calls Ruling 'heavy-handed'

Patients' medical needs aren't reason enough for the Oakland Cannabis
Buyers Cooperative to violate the federal ban on marijuana, the U.S.
Supreme Court ruled Monday, leaving medical marijuana advocates
disappointed but determined to struggle on.

The 8-0 ruling in the high court's first-ever medical marijuana case said
Congress' placement of marijuana on the Controlled Substance Act's list of
most-restricted drugs is unequivocal -- lawmakers believe it has no medical
use, with no exceptions.

All the justices agreed growers and sellers can't claim patients' need is a
reason to break that law; three justices tried to leave the door open for
patients to bring such a claim themselves.

Medical marijuana advocates insist the ruling deals only with federal law,
not the state laws under which most marijuana cases are tried; California
allows medicinal marijuana use under Proposition 215 of 1996. But it was a
disheartening, high-profile defeat for such advocates in this and seven
other states with similar laws.

"This is merely a preliminary stage of the case," OCBC attorney Robert
Raich promised during a news conference Monday at Oakland City Hall. "It is
the end of round one, but there is much more fighting that needs to be done."

OCBC executive director Jeff Jones called the ruling "heavy-handed and
misguided." Both he and Raich likened it to the Dred Scott decision of
1858, in which the nation's highest court upheld slavery. Perhaps this
ruling, like that one, will spark a popular uprising against an immoral
government policy, they said.

"It took a civil war in order to overturn that decision," Raich said. "And
anytime a government fights its own citizens, it's a civil war."

Yet Robert Maginnis, vice president of the anti-marijuana Family Research
Council, called the ruling "a major strike against legalizers' crusade to
skirt federal drug laws . . . Smoking pot is never sound medicine."

The U.S. Justice Department in 1998 convinced U.S. District Judge Charles
Breyer of San Francisco to issue a preliminary injunction halting the
OCBC's distribution of marijuana to its 2,500 members.

The 9th U.S. Circuit Court of Appeals last year ruled the cooperative could
claim an exception to the federal Controlled Substances Act -- which lists
marijuana on its most-restricted "schedule," meaning Congress believes it
has no valid medical use -- because the cooperative's members have a
medical necessity for the drug. The Supreme Court heard arguments March 28.

"A medical necessity exception for marijuana is at odds with the terms of
the Controlled Substances Act," Justice Clarence Thomas wrote in Monday's
opinion for himself and four other justices. "It is clear from the text of
the Act that Congress has made a determination that marijuana has no
medical benefits worthy of an exception."

Justice John Paul Stevens, in a concurring opinion joined by justices Ruth
Bader Ginsburg and David Souter, agreed there's no medical necessity
exception for growing and distributing marijuana.

But, they said, the rest of the court went to far by suggesting nobody can
present such a defense. This case dealt only with distributors, Stevens
wrote: "(W)hether 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."

But Thomas wrote federal law doesn't differentiate between distribution and
personal use, even by seriously ill people.

Justice Stephen Breyer didn't take part in this case because the San
Francisco federal trial judge handling it is his brother.

OCBC member Angel McClary, 35, of Oakland, said although she's the one
using cannabis to combat the symptoms of a brain tumor, a seizure disorder
and other ills, her 15-year-old son and 12-year-old daughter are the ones
who would suffer from Monday's ruling if she were to honor it.

"I would have to tell them that the government has just given their mother
a death sentence," she said angrily. "I'm not going to follow your law. I'm
not going to be the one to commit myself to death. I'm not going to let my
children watch me die. If that is wrong, so be it.

Raich said the cooperative -- enjoined from distributing marijuana since
last year -- will keep interviewing patients, certifying them as eligible
for marijuana under Proposition 215 and issuing photo identification cards.

The legal battle will continue, he added. The cooperative can still raise
Constitutional defenses such as states' rights to make their own laws, the
"substantive due process" right of Americans to be free from pain, and even
an argument that Congress has no right to regulate intrastate commerce
within California's borders.

Even Monday's defeat served to advance the issue, he said: "The fact that
we even have the Supreme Court considering this issue and laying out a
roadmap of what a beneficial decision would be, I think, benefits patients."

California Attorney General Bill Lockyer issued a news release saying it's
"unfortunate that the court was unable to respect California's historic
role as a 'laboratory' for good public policy and a leader in the effort to
help sick and dying residents who have no hope for relief other than
through medical marijuana." He said he couldn't recommend what to do about
the state law until he has had more time to review Monday's opinion.

State Sen. John Vasconcellos, author of a pending bill to create a photo
identification card registry for California doctors and patients who
prescribe and use marijuana, called Monday a bad day for American freedom.

"Fascism rules supreme," raged Vasconcellos, D-Santa Clara, calling the
ruling out of step "with science, with the people's will, with the states'
right to choose. They're wrong on all counts. It's an infuriating, stupid
opinion.

"If I could secede from the Union, I'd lead the fight today."

New Jersey attorney David G. Evans, who wrote a brief against the OCBC for
the Drug Free America Foundation and other anti-drug groups, said the court
"saw through the scam" of medical marijuana.

, which his clients say is a thinly veiled prelude to total legalization.

He acknowledged most marijuana cases are tried under state law, but said
the ruling could chill medicinal use nonetheless.

"Right now, under the California referendum, you've got to have the
recommendation of a physician" for medical marijuana use, Evans noted. "If
I were a physician and I read this decision, I don't know that I would want
to put my medical license in jeopardy."