MARIJUANA PROPONENTS FACE JUSTICES

WASHINGTON -- The Supreme Court took a first look at prescription pot
Wednesday, hearing arguments on an issue that has pitted the federal
government against cancer, AIDS, and other patients who sometimes regard
marijuana as a wonder drug.

So far as the federal government is concerned, marijuana is illegal and
should remain so. Federal enforcement efforts have led to confrontations
and arrests in California and other Western states.

The issue for an openly skeptical Supreme Court is whether a patient's need
for marijuana trumps a 1970 federal law that classifies it as an illegal
substance with no known medical value.

President Bush supports federal prohibitions on marijuana, but also
respects states' rights to pass voter initiatives, as was the case in
California, spokesman Ari Fleischer said.

"The president is opposed to the legalization of marijuana, including for
medicinal purposes," he said Wednesday.

Lawyers for the Oakland Cannabis Buyers Cooperative in California want to
make what they call a "medical necessity" defense in federal court, and
argue that federal judges and juries have the power to decide if the drug
is warranted.

Several justices seemed to think that approach was a stretch at best.

"I thought the medical necessity defense was for an individual," Justice
Antonin Scalia said. "You would extend it to the person prescribing the
drug, and even to opening a business" to dispense it.

"That's a vast expansion beyond any necessity defense I've ever heard of,"
Scalia said.

Justice Anthony M. Kennedy seemed to agree.

"You're asking us to hold that this defense exists . . . with no specific
plaintiff before us, no specific case," Kennedy told the club's lawyer,
Gerald Uelmen.

The court's ruling is expected by the end of June.

A ruling for the Oakland club would allow special marijuana clubs to resume
distributing the drug in California, which passed one of the nation's first
medical marijuana laws in 1996.

A ruling for the federal government would not negate the California voter
initiative, but effectively would prevent clubs such as Oakland's from
distributing the drug openly.

One of the most vocal opponents of legalized prescription marijuana is
Barry McCaffrey, the Clinton administration's drug policy director. He once
dismissed the practice as "Cheech and Chong medicine," a reference to the
comedy team that celebrated pot-smoking.

Advocates of medical marijuana say the drug can ease side effects from
chemotherapy, save nauseated AIDS patients from wasting away, or even allow
multiple sclerosis sufferers to rise from a wheelchair and walk.

There is no definitive science that the drug works, or works better than
conventional, legal alternatives. Nonetheless, nine states have laws
allowing the legal use of marijuana to treat a host of ailments.

Scalia challenged Uelmen to list medical emergencies that could require
marijuana treatment.

"Death, starvation, blindness," Uelmen began.

"Stomachache?" Scalia interrupted with an edge of sarcasm.

Representing the government, Barbara Underwood, a holdover from the Clinton
administration Justice Department, said the 1970 Controlled Substances Act
"leaves no room for the Oakland Cannabis Buyers Cooperative" and others to
act as "marijuana pharmacies."

Bush's choice as solicitor general, the government's chief advocate before
the Supreme Court, Theodore Olson, has not been confirmed by the Senate.

Several states are considering medical marijuana laws, and Congress may
revisit the issue this year. A measure to counteract laws like California's
died in the House last year.

Activists on both sides gathered outside the court.

The Clinton administration sued to stop distribution by the Oakland group
and five other California clubs in 1998.

U.S. District Judge Charles Breyer, brother of Supreme Court Justice
Stephen Breyer, sided with the government. All of the clubs except the
Oakland group eventually closed down, and the Oakland club turned to
registering potential marijuana recipients while it awaited a final ruling.

The 9th U.S. Circuit Court of Appeals reversed the decision, ruling that
medical necessity is a legal defense. Charles Breyer followed up by issuing
strict guidelines for making that claim.

Stephen Breyer will not participate as the other eight justices consider
their ruling. Should the court divide 4-4, the appeals court ruling would
stand.

Voters in Arizona, Alaska, Colorado, Maine, Nevada, Oregon, and Washington
also have approved ballot initiatives allowing the use of medical
marijuana. In Hawaii, the Legislature passed a similar law and the governor
signed it last year.