SUPREME COURT PANS PAIN IN POT CLUB CASE

Justices Weigh Violation Of Fed Laws

WASHINGTON -- In a case that could upend medicinal marijuana distribution
in California and several other states, members of the U.S. Supreme Court
questioned Wednesday whether a desire to ease the pain of disease really
justifies violating federal drug laws.

Anti-drug advocate Robert Maginnis with the Family Research Council said
later those questions made him hopeful that the high court might reject the
Oakland Cannabis Buyers Cooperative's argument against the government that
people should be able to obtain marijuana as a "medical necessity" even
though it has been classified as illegal under federal law. The court's
decision is expected this summer.

The Oakland cannabis club and the U.S. Attorney's Office have been locked
in a legal battle since 1998 when the government first sought to shutter
the business and others like it. Such clubs or "medical cannabis
dispensaries" blossomed in California after voters in 1996 approved a
ballot initiative removing state law as an obstacle to the possession and
cultivation of marijuana for medical purposes.

Yet the federal prohibitions still hold, and U.S. Justice Department
Solicitor General Barbara Underwood argued Wednesday that law allows no leeway.

Should the court rule in favor of the government, it would not negate
California's Proposition 215 or similar medicinal marijuana initiatives in
Colorado, Alaska, Hawaii, Oregon, Washington, Maine, Arizona and Nevada.
But it could effectively prevent clubs like Oakland's from distributing the
drug.

Gerald Uelman, attorney for the cannabis club, argued that deciding whether
to live with the intense pain that accompanies cancer, AIDS and other
diseases or violating the law is "a classic demonstration of a choice of
evils defense."

But several justices seemed skeptical of that argument, particularly when
it is stretched to include not only people smoking marijuana but also
businesses distributing the drug.

"What choice of evils is it for the provider? It certainly isn't the
provider's responsibility to look out for individuals," said Chief Justice
William Rehnquist.

Justice Antonin Scalia called extending the potential protection to
businesses "a vast expansion beyond any medical necessity defense I've ever
heard of before."

Justice Anthony Kennedy said he is concerned that people who are not
physicians would be determining medical necessities. "That's a huge
reinvention of the wheel," he said.

Yet in arguing the government's case, Underwood also faced some doubt from
justices on whether Congress has really determined that marijuana has no
medical benefits.

Justice Ruth Bader Ginsburg recounted one highly publicized story of a
cancer patient for whom marijuana provided the only relief from constant
vomiting. "This is not an uncommon experience. Am I wrong here in thinking
there has been quite a bit of this going on in the medical profession?" she
asked Underwood.

Added Scalia, "Can you really say there has been a determination by the
federal government that marijuana is never medically useful?"

Underwood stood firm, noting the Federal Drug Administration has concluded
there is insufficient reason to believe marijuana is a safe or effective drug.

Justice Steven Breyer recused himself because he is the brother of Charles
Breyer, the San Francisco-based federal district judge who first ordered
the club to stop distributing marijuana. Last year an appeals court
reviewed the case by ruling that "medical necessity" is a legal defense.
Before leaving office, the Clinton administration appealed to the Supreme
Court.

Should the court divide 4-4, the appeals court ruling would stand and the
marijuana club would be back in business.

White House spokesman Ari Fleischer said Wednesday that President Bush
"strongly supports" the federal ban on marijuana and does not believe it
should be legalized even for medicinal purposes. Bush does, however,
believe that "states have the right to follow their own processes,"
Fleischer added.

Wednesday's case brought out hundreds of activists on both sides of the
issue, from parents carrying photographs of children dead from drug
overdoses to a 61-year-old glaucoma patient who called marijuana "something
I give the creator thanks for every day."

Oroville resident Cody Titensor, 19, stood outside the Supreme Court
holding a banner that read "Protect Our Children. Stop Pot," and said he
opposes the broader message that medicinal marijuana advocates are sending
children.

"People who want marijuana to be legalized for terminally ill people want
it to be legal for everyone," he charged. "Drugs are a huge problem in
America, but I don't think legalization is the answer."

Yvonne Westbrook, 37, of Richmond, suffers from multiple sclerosis and said
closing down medicinal marijuana clinics would shut her off from the one
drug that has eased spasticity in her arms and legs without unbearable side
effects.

"Can you imagine me going to a park in this wheelchair to try to buy pot
after becoming accustomed to making my purchases in a clean, safe
environment?" she said.

Rob Kampia, executive director of the Marijuana Policy Project, said even
if the high court rules against the club he expects many medicinal
marijuana distributors will continue to operate under state law and simply
risk federal prosecution.

"It's going to be business as usual in California," he said.