MUDDLE OVER MARIJUANA: OREGON'S LAW MAY SURVIVE HOSTILE COURT

The federal government has a strong case against medical marijuana laws in
Oregon and eight other states. Marijuana, under federal law, is classified
as a Schedule 1 drug - one for which there is no approved medical use.
State laws can't change that classification.

Yet the case that has made its way to the U.S. Supreme Court doesn't
address the clear conflict between state and federal law, and instead
attacks California's medical marijuana law in a way that could leave
Oregon's law standing. The result is likely to be even more confusion than
currently exists - confusion that Congress should address.

A majority of U.S. Supreme Court justices made it clear in their comments
during oral arguments Tuesday that they are openly hostile to California's
medical marijuana law. The issue before the court, however, was whether a
federal injunction against the activities of an Oakland marijuana
distribution club should stand. Oregon's law does not allow
California-style marijuana clubs, and consequently might survive a Supreme
Court ruling upholding the injunction.

Lower courts have blocked the injunction, finding that the Oakland club
could distribute marijuana as a matter of "medical necessity." The Supreme
Court justices did not appear to be impressed by this defense. The nature
of the case, however, forces the court to debate the medical efficacy of
marijuana rather than simply examining a cut-and-dried conflict between
state and federal law.

It's revealing that of the nine state laws allowing the medical marijuana,
only Hawaii's was enacted by the Legislature. The others became state
statutes by initiative - including Oregon's law, which was approved by 55
percent of voters in 1998. Unlike legislators, voters have been willing to
overlook the prospect of a conflict with federal law and have given people
with cancer, AIDS and other diseases limited access to a drug said to
provide uniquely effective relief from such symptoms as nausea and pain.

The federal government disputes claims that marijuana has unique and
beneficial medicinal uses - Barry McCaffrey, head of the Office of National
Drug Control Policy, calls such claims "Cheech and Chong medicine." The
same federal government that argues that no scientific studies support the
medical efficacy of marijuana, unfortunately, has worked for decades to
discourage research to determine whether marijuana has legitimate medicinal
uses. In the meantime, voters have responded sympathetically to the
anecdotal but persuasive testimony of disease sufferers who say that
marijuana provides relief where all other drugs have failed.

Now the Supreme Court will decide whether "medical necessity" trumps
federal law. If it upholds the injunction against the Oakland marijuana
distribution club, however, Oregon's law may be unaffected. Its law
specifically prohibits the sale of marijuana, and instead allows patients
to register with the state for a permit to grow their own supplies.
Oregon's system is superior to California's, but still conflicts with the
federal government's Schedule 1 classification.

Congress could clear up this conflict, and spare the Supreme Court a future
round of appeals, by reclassifying marijuana as a Schedule 2 drug - one
that is still illegal, but which has recognized medical uses. The states
could then decide for themselves whether to allow marijuana to be used for
medical purposes, and could control the distribution of the drug. It's not
likely that the current Congress would consider such a humane and sensible
approach. But until it does, voters' natural sympathy for disease sufferers
will continue to create conflicts with federal law. The Supreme Court's
decision in the case at hand is not likely to resolve those conflicts.