COURT WEIGHS EXCEPTION TO MARIJUANA BAN

Advocates argue today that 'medical necessity' excuses compliance with US law.

There is no fundamental right under the US Constitution to consume
illegal narcotics.

When the nation's Founders wrote of "the blessings of liberty," they
were not alluding to guaranteed consumption of recreational drugs
deemed by federal regulators and national lawmakers to be devoid of
healthful benefits.

But what about people under the care of a physician who believes that
smoking marijuana may help alleviate their suffering? Do those
patients have a basic right to pursue the type of treatment they deem
most appropriate, without interference or second-guessing from the
federal government?

Should it be legal to use marijuana if a doctor says it's a 'medical
necessity'? Vote and discuss here.

Today, the thorny debate over the medical use of marijuana arrives at
the US Supreme Court, where the justices are being asked to carve out
a limited but clear exception to the federal ban on marijuana sales
and use.

At issue in the case - US v. Oakland Cannabis Buyers' Cooperative -
is whether the court should endorse the idea that distributors and
users of marijuana who are acting under a "medical necessity" should
be excused from compliance with federal drug laws.

Under existing laws in certain states, such a determination of
medical necessity would be made by a treating physician. Advocates
say this would help prevent the program from becoming a Trojan horse
for drug dealers and traffickers. They say eventually marijuana
should be available as a prescription drug sold in pharmacies.

Proponents of strict drug laws warn that so-called compassionate use
of marijuana is merely a first step toward total legalization. And
any easing of a complete ban, they say, would be a disaster for
American youths.

"If you allow this for even this compassionate use, it gives the kids
the excuse that it is not harmful, that it is medicine," says
DeForest Rathbone of the National Institute of Citizen Antidrug
Policy, a parents' group in Great Falls, Va. "It is harmful, and we
just can't do that as a government policy."

State Laws Unaffected:

Chuck Thomas of the Marijuana Policy Project in Washington says since
1996, eight states have adopted laws permitting the medical use of
marijuana, and more are on the way. "Even if the Supreme Court issues
an unfavorable ruling, it will not overturn any of these state
medical-marijuana laws," he says.

Mr. Thomas says because 99 percent of all arrests for marijuana
possession and use are made by local or state police - rather than
federal agents - state laws play a much bigger role in the
medical-marijuana issue than a federal statute.

"The federal government doesn't have the resources or the mandate to
go into the states and pick up the slack," he says.

"There are still going to be tens of thousands of patients in these
states growing and using their own marijuana at home - and little
chance of federal agents finding out about it."

The heart of the case before the Supreme Court involves a challenge
by the US Justice Department to Proposition 215 in California, the
1996 referendum that opened the door for medical-marijuana use in
that state.

After the measure passed, several "cannabis clubs" opened to help
distribute marijuana to patients seeking it for medical reasons.
Prosecutors asked a federal judge to shut down the clubs on grounds
that they were violating the federal Controlled Substance Act, which
outlaws growing, selling, or consuming marijuana anywhere in the US.

The prosecutors targeted six clubs, including the Oakland Cannabis
Buyers' Cooperative in Oakland, Calif.

The judge in the case, US District Judge Charles Breyer, brother of
US Supreme Court Justice Stephen Breyer, issued an injunction,
shutting down the cannabis clubs. But the federal appeals court
reversed, ruling that US drug laws didn't apply when the defendants
could prove the drug activity in question was a medical necessity.

In a brief to the Supreme Court, the US Solicitor General's Office
says Congress and other top government officials carefully considered
whether to enact a total or partial ban of marijuana, and opted to
outlaw its use entirely.

"A district court may not override those determinations by reweighing
the scientific and medical data and social policies ... and
concluding that the public interest supports the illegal distribution
of marijuana," the brief says.

A legitimate purpose?

Lawyers for the Oakland Cannabis Buyers' Cooperative counter that the
congressional ban on marijuana is not a specific finding that
"cannabis has no medical use, or that it can never serve any
legitimate medical purpose."

The government has recognized medical-necessity exemptions in the
past, they say.

The lawyers add that under state law, patients enjoy basic rights
that Congress may not take away. "The people have recognized a
fundamental liberty interest in allowing access to cannabis to
alleviate illness," the brief says. It adds: "If the court were to
adopt the government's position, such an interpretation would deprive
patients of their fundamental liberties."