MEDICAL POT BACKERS EXPECT TO LOSE IN TOP COURT

WASHINGTON - The Supreme Court sharply questioned defenders of an Oakland
marijuana buyers cooperative Wednesday in a case that tests the scope of
California's law allowing people with debilitating medical conditions to
ease their symptoms by using marijuana.

U.S. vs. Oakland Cannabis Buyers' Cooperative marks the high court's first
venture into the controversial thicket of "medical marijuana" but does not
pose a direct challenge to California's Compassionate Use Act, which was
passed as Proposition 215 in 1996 by 56 percent of state voters.

The crux of the case is whether the buyers clubs that help patients obtain
marijuana violate federal drug law.

Several clients of the Oakland cooperative came to hear the case Wednesday,
arguing that marijuana provides relief from pain and dangerous levels of
nausea in cancer and AIDS patients, can help lift energy levels in severely
ill people and helps treat anorexia, glaucoma and other illnesses.

Yvonne Westbrook of Richmond, who has multiple sclerosis, told reporters
that smoking pot "allows me to function somewhat as a human being."
Creighton Frost, who has throat cancer and spoke angrily through a voice
synthesizer, said, "All I want is to be left alone to die comfortably."

But after hearing the justices' questions Wednesday, medical marijuana
supporters came away prepared for a loss.

"We're gearing for a potential ruling that is coming down on a negative
side," said Jeffrey Jones, who heads the Oakland Cannabis Buyers' Cooperative.

The civil lawsuit, brought by the Clinton administration in 1998, seeks to
close buyers clubs that sprang up in the wake of California's initiative
and similar laws subsequently passed in eight other states - Alaska,
Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington.

The Justice Department prevailed in the district court, but that ruling was
reversed in the 9th Circuit Court of Appeals.

The Justice Department appealed to the Supreme Court, which is expected to
issue its ruling in June.

The Oakland cooperative, backed by a host of supporters who filed legal
papers, including the California Medical Association and California
Attorney General Bill Lockyer, argued among other things that the buyers
clubs are shielded from federal drug laws through a "medical necessity"
exemption.

They said despite federal drug statutes, traditional common law provides a
necessity defense that allows a law to be disobeyed, if obeying it would
bring greater harm than the law sought to prevent.

The Justice Department argued the common law defense does not apply to
marijuana, because Congress rejected its medical use in the Controlled
Substances Act of 1970 and explicitly reaffirmed that position in 1998.

The Justice Department also argued that the Food and Drug Administration
has not found marijuana to be "safe and effective" and that allowing
marijuana buyers clubs to flourish would invite proliferation of drug
operations.

Such action, it maintained, "opens the way for manufacturers, distributors
or users of other Schedule 1 drugs such as heroin or LSD ... to invoke
'medical necessity' as a defense to violation of the nation's drug laws."

While Justices John Paul Stevens and Ruth Bader Ginsberg, both members of
the court's liberal wing, appeared sympathetic to the medical use of
marijuana, the other justices found flaws in the Oakland club's case.

Justice Antonin Scalia drew a sharp distinction between individuals and
buyers clubs, saying the Oakland cooperative was asking the court to extend
the medical necessity exception to "somebody who opens up a business.
That's a vast expansion beyond any necessity defense I've ever heard of
before."

Justice Anthony Kennedy said the idea that buyers clubs or individuals, as
opposed to doctors, could be determining whether using marijuana is a
medical necessity would constitute "a huge rewriting" of federal law.

But Kennedy also seemed to invite a future challenge by an individual,
saying, "You're asking us to hold that this defense exists ... with no
specific plaintiff before us, no specific case."

Chief Justice William Rehnquist also shot down one of the cooperative's
chief arguments - that Congress never contemplated medical necessity in
writing the drug statutes - saying it "doesn't make much sense" given that
Congress specifically ruled out medical use of marijuana.

Jones said he remained hopeful because whatever the ruling, California's
law will remain intact, so that individuals may still be free to buy or
cultivate marijuana for their own use, even if distribution through a
cooperative is ruled illegal.

Keith Stroup, executive vice president of the National Organization for the
Reform of Marijuana Laws, which submitted a friend-of-the-court brief,
agreed that a loss "doesn't mean they will necessarily do away with the
medical necessity defense, but it may limit it to the patient."

Stroup added that the federal government has shown little interest in
criminal prosecutions of individuals, because prosecutors "would have
trouble getting convictions" against desperately sick people brought before
a jury for drug law violations.