JUSTICES TO RULE ON HOW PATIENTS GET MEDICAL MARIJUANA

OAKLAND, Calif. - A few years ago, an author writing about death asked
ailing AIDS patient Michael Alcalay how he was accepting dying.

"I'm not accepting it," Alcalay retorted.

Alcalay is alive today thanks in part, he believes, to doses of marijuana
that helped him keep his medicines down and appetite up as he fought the
disease.

On Wednesday, Alcalay will be in the audience as lawyers try to convince
the U.S. Supreme Court that federal anti-drug laws shouldn't prevent
marijuana from being given to seriously ill patients for pain relief.

"Once the justices recognize what's really at stake in this case, if any
semblance of justice prevails then so will we," said Robert Raich, an
attorney representing the Oakland Cannabis Buyers' Cooperative.

The cooperative is a distribution club operating under California's
Proposition 215, the voter-approved law that allows the possession and use
of marijuana for medical purposes on a doctor's recommendation.

That's where Alcalay used to get his marijuana. But he's had to look
elsewhere since the federal government sued the cooperative and five other
California pot clubs in 1998 to prevent them from distributing the drug.

A federal judge sided with the government. But last year, the 9th U.S.
Circuit Court of Appeals ruled that "medical necessity" is a legal defense.

California officials, including Attorney General Bill Lockyer, argue that
the state has the right to enforce its medical marijuana law, which was
approved by voters in 1996. Distribution clubs sprang up because
Proposition 215 is silent on how patients will get marijuana, outside of
growing and harvesting it themselves.

The Supreme Court is not looking directly at Proposition 215, but rather at
whether medical necessity may be used as a defense against federal drug
bans. It's unclear whether the justices will rule on that general issue or
rule more narrowly on how lower courts have handled this case.

If the court says "yes" to the necessity defense, it could make it easier
to distribute medical marijuana in California and the eight other states
with similar laws - Alaska, Hawaii, Oregon, Washington, Arizona, Maine,
Nevada and Colorado.

Supreme Court Justice Stephen Breyer has recused himself because he is the
brother of Charles Breyer, the federal district judge who ordered the club
to stop distributing marijuana.

The club remains open, but only to sell legal hemp products and maintain a
membership database.

Advocates say marijuana is a reliable and nontoxic therapy that in some
cases is the only relief for suffering people.

That point of view was endorsed recently by the Institute of Medicine. The
institute, which was asked to examine the issue by the White House drug
policy office, said that because the chemicals in marijuana ease anxiety,
stimulate appetite, ease pain and reduce nausea and vomiting, they can be
helpful for people undergoing chemotherapy and people with AIDS.

Alcalay, a 59-year-old physician who serves as the club's medical director,
started using marijuana to keep down his medication after he was diagnosed
with HIV in the 1980s. HIV turned into AIDS and in the mid-1990s Alcalay
almost died from an intestinal illness that ran roughshod over his weakened
immune system.

Although he lost 35 pounds, he said small doses of marijuana helped make
meals palatable.

He credits marijuana with keeping him alive until the advent of drugs that
boosted his immune system and wiped out the intestinal bug.

Alcalay didn't make it into the book about dying.

Recently, he ran into the author.

"He was surprised to see me," Alcalay said.