SUPREME COURT HEARS U.S. ARGUE AGAINST MARIJUANA AS A MEDICAL NECESSITY

Although the Supreme Court is usually solicitous of states' rights, that
attitude appeared today to stop well short of endorsing the medical use of
marijuana, which California voters authorized in a 1996 referendum despite
a federal law that considers marijuana to have "no currently accepted
medical use."

Two lower federal courts in California have held that a marijuana
distribution center in Oakland could invoke "medical necessity" as a
defense against the federal government's effort to get an injunction to
stop the operation of the "cannabis clubs." The clubs sprang up around the
state after passage of California's Proposition 215, entitled the
Compassionate Use Act.

Hearing the government's appeal, the justices were openly skeptical that a
defense of "medical necessity" could be properly recognized.

When Gerald F. Uelmen, the lawyer for the Oakland Cannabis Buyers'
Cooperative, said the lower courts had recognized only a "limited
exception" for people who could show that they had a serious need for
marijuana and lacked any reasonable alternative, Justice Anthony M. Kennedy
interjected, "It doesn't sound limited at all."

Justice Kennedy said the lower courts had effectively engaged in a "huge
rewriting" of the federal law that places marijuana within schedule I of
controlled substances, those with no accepted medical use.

The federal government responded to the adoption of Proposition 215 not
with criminal prosecutions of marijuana providers and users, but by seeking
a federal court injunction to stop the cannabis clubs from distributing the
drug. As a legal matter, the argument today was not directly about the
validity of Proposition 215 itself but about what discretion the lower
courts had in responding to the request for the injunction.

Given this narrow focus, the Supreme Court is unlikely to issue a
definitive ruling on the future of the growing number of medical marijuana
initiatives, which have now been adopted by nine states. The medical use of
marijuana by individual patients and doctors, as opposed to distribution
through the pharmacy-like cooperatives, is not directly at issue.

Several justices today questioned the government's approach, suggesting
that its reasons for pursuing a civil injunction rather than criminal
prosecution were not only tactical but cynical, perhaps even a misuse of
the federal courts' authority to issue injunctions.

"Isn't the real concern behind this that with the passage of the California
proposition and the popularity within the California population that that
necessarily entails, it will be very, very difficult for the government
ever to get a criminal conviction in a jury trial?" Justice David H. Souter
asked Barbara D. Underwood, the acting solicitor general.

Ms. Underwood said that because in the government's view "there simply is
no medical necessity defense at all," it was more efficient to "get it
resolved systemically in a civil proceeding that simply presents that legal
question" by means of an injunction rather than in a series of criminal
prosecutions.

California itself was not a party to the case, but the California attorney
general, Bill Lockyer, filed a brief on behalf of the Oakland cooperative.
"The federal government threatens to cross the line of state sovereignty
and interfere with a traditional state right," the attorney general said.
Mr. Lockyer said states had a "traditional right to regulate for the health
and welfare of their citizens."

The California Medical Association also supported the Oakland group, as did
civil liberties and drug policy organizations and a group of local sheriffs
and officials from other states that have adopted medical marijuana
initiatives.

The briefs contain considerable information about current practices of
using marijuana to combat glaucoma, the nausea of chemotherapy, and the
wasting syndrome of AIDS. There is also debate in the briefs over whether a
legal drug called Marinol, a synthetic version of the active ingredient in
marijuana, offers the relief that some patients find in smoking marijuana.

Justice Ruth Bader Ginsburg, who endured a course of chemotherapy last year
as treatment for colon cancer, made it clear that she had read the briefs
with care and interest. Addressing Ms. Underwood, the government's lawyer,
Justice Ginsburg referred to one description of one cancer patient "who was
constantly vomiting, and the only thing that calmed him down" was
marijuana. "That is not an uncommon experience," she said, asking: "Am I
wrong in thinking that there has been quite a bit of this going on in the
medical profession?"

Ms. Underwood replied, "I don't know how much of it has been going on." She
added that although federal agencies were not yet persuaded of the benefits
of medical marijuana, they were continuing to study it to determine
"whether it has the effect that's described."

The medical-necessity defense recognized by Judge Charles Breyer of Federal
District Court in San Francisco is narrowly defined. It applies only to
those who suffer from a "serious medical condition"; who will "suffer
imminent harm" without access to marijuana; whose condition or symptoms
will be eased by marijuana; and who had "no reasonable legal alternative"
to the drug.

Because Judge Breyer is the younger brother of Justice Stephen G. Breyer,
Justice Breyer has recused himself from the case, United States v. Oakland
Cannabis Buyers' Cooperative, No. 00-151, and only eight justices heard the
argument this morning.