HIGH COURT PUTTING POT TO THE TEST

Justices Will Rule If Marijuana Has Legal Value As Pain Reliever

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 judicious
doses of marijuana, the unorthodox medical approach endorsed by
California's Proposition 215.

On Wednesday, Alcalay will be in the audience as lawyers try to
convince the 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," says attorney
Robert Raich, who is 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 U.S.
Ninth 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
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 G. 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.

Justice Department lawyers declined to comment on the case. They have
argued that allowing clubs to hand out marijuana compromises the
government's ability to enforce federal drug laws.

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.

Institute officials also warned that smoking marijuana can cause
respiratory disease and recommended development of forms of the drug
that could be taken in other ways.

Alcalay, a 59-year-old physician who serves as the club's medical
director, started using marijuana medically to keep down his pills
after he was diagnosed with HIV in the 1980s. HIV turned into AIDS
and in the mid-'90s Alcalay almost died after he picked up an
intestinal bug that ran roughshod over his weakened immune system.

Although he lost 35 pounds off his 165-pound, 5-foot-10 frame he said
small doses of marijuana helped make meals palatable. "I don't like
getting stoned. I like to be in control," he says.

"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 says with a laugh.