MARIJUANA CASE LEAVES JUSTICES SKEPTICAL

A Calif. Cannabis Group Is Asking The Supreme Court To Recognize A Medical
Exception To Federal Drug Laws

WASHINGTON - An attorney for an Oakland marijuana cooperative asked the
Supreme Court yesterday to let sick people obtain marijuana to help
alleviate their symptoms, in a case that pits the movement for state
medical-marijuana laws against the federal war on drugs.

The court should recognize a "medical necessity" exception to the federal
prohibition on possessing and distributing marijuana, said Gerald F.
Uelmen, who represents the Oakland Cannabis Buyers' Cooperative, one of
several "cannabis clubs" that sprang up after California voters, in a 1996
referendum, legalized the doctor-approved use of marijuana.

Politically, a victory for the Oakland cooperative would be a boost to the
medical-marijuana movement, which has already persuaded voters in eight
states to approve ballot measures similar to California's. But a ruling in
favor of the federal government could be a significant setback to the
movement by creating doubt about states' ability to deviate from federal
drug law.

Notwithstanding strong support for medical-marijuana laws in certain
states, national politicians have opposed them rather than deviate from the
zero-tolerance drug policy the public generally demands.

White House view

President Bush's spokesman, Ari Fleischer, said yesterday that Bush
personally opposed medical marijuana, despite remarks during last year's
campaign that suggested some sympathy for states' right to adopt a
different policy.

Bush's view echoes that of the Clinton administration, which had argued in
court that the California measure promoted "disrespect" for drug laws. The
Clinton Justice Department sued the Oakland cooperative, and a federal
court ordered it closed in 1998.

Acting Solicitor General Barbara Underwood, a holdover from the Clinton
administration, urged the justices yesterday to not send a signal that
would "undermine the authority of [Congress] to protect the public from
hazardous drugs."

She argued that there was "no currently accepted medical use" for
marijuana, and that permitting courts and juries to acquit marijuana
defendants based on "medical necessity" would create a massive loophole in
federal drug laws.

Justices' doubts

She seemed to get a receptive hearing. Despite its past support for state
prerogatives, the court has already leaned toward the federal government's
assertion of authority against the cannabis clubs.

In August, after a lower federal appeals court had let the Oakland
cooperative reopen, a Supreme Court majority granted the Justice
Department's request to keep the cooperative closed until the justices had
a chance to decide the issue.

Several justices expressed skepticism on what they called the "sweeping"
nature of the Oakland group's proposed "medical necessity" rule.

"I would have thought . . . that the [appeals court] erred at the point
that it created this kind of blanket defense," Justice Sandra Day O'Connor
remarked.

"Every respondent who wishes to take advantage of it is going to have to
show that they are suffering from a serious medical condition . . . and
that they have no reasonable alternative," Uelmen responded.

Justice Antonin 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.

A ruling in the case, U.S. v. Oakland Cannabis Buyers' Cooperative, is
expected by the end of June.

Justice Stephen G. Breyer will not participate in the decision. His
brother, U.S. District Judge Charles R. Breyer, had issued the initial
ruling in the case, siding with the government.

Seemingly conceding that their chances of victory at the Supreme Court are
slim, medical-marijuana backers have begun a major public-relations
campaign to persuade potential supporters that the court lacks the power to
invalidate state medical-marijuana laws.

Even if cannabis clubs were put out of business, individuals in states that
permit medical marijuana could still grow their own, they say, and it would
be up to the federal government to find and prosecute them.

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

There is no definitive science that the drug works, or works better than
conventional, legal alternatives.