JUSTICES DOUBTFUL ABOUT MEDICAL MARIJUANA

WASHINGTON -- Liberal and conservative Supreme Court justices expressed
doubt Monday that sick patients should be allowed to use
doctor-recommended marijuana to relieve pain.

Justice Antonin Scalia, one of the five conservatives on the
nine-member court, said federal law criminalizing marijuana trumps a
California law that allows chronically ill patients to use it.

Making an exception for patients, liberal Justice David Souter said,
could open the door to widespread marijuana use and to fraudulent
claims of illness by recreational pot smokers in California and the 10
other states that allow medical marijuana.

Justice Stephen Breyer, another liberal, said advocates for medical
marijuana should first ask the federal Food and Drug Administration to
reclassify pot as having a medical use. The U.S. government considers
marijuana to be an intoxicant with no medicinal value. Citing
California voters' approval of medical marijuana in 1996, Breyer said,
"Medicine by regulation is better than medicine by
referendum."

The justices' comments came during oral arguments in a case brought by
Angel Raich and Diane Monson, critically ill Californians seeking to
use marijuana under state law without facing federal prosecution. In
court briefs, the women argue that marijuana provides relief for
symptoms of an inoperable brain tumor, scoliosis and other maladies
for which conventional medicine is of little or no help.

The women won an injunction from the U.S. Court of Appeals for the 9th
Circuit that blocks the U.S. government from arresting them or seizing
their marijuana plants. But the government, which has made opposing
medical marijuana part of its war on drugs since the Clinton
administration, appealed to the Supreme Court.

The Supreme Court's decision is likely to have an impact on California
and the other states that permit marijuana use for medical reasons:
Alaska, Arizona, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon,
Vermont and Washington.

Monday's arguments suggested the case could turn on a point of law
that has nothing to do with marijuana's medicinal value.

Acting Solicitor General Paul Clement argued that the Constitution's
language allowing the U.S. government to regulate interstate commerce
allows it to override California's medical marijuana law. In the past
75 years, the court has permitted Congress to use this "commerce
clause" to regulate housing, restaurant and hotel accommodations, farm
production and other areas that traditionally were the province of
state or local law.

Randy Barnett, arguing for Raich and Monson, countered that pot grown
by or given to sick patients does not amount to interstate commerce
and thus should not be subject to federal drug law. "It's non-economic
and intrastate," he said.

Barnett's position appeared to be supported by Justices Sandra Day
O'Connor, who usually votes with the court's conservatives, and Ruth
Bader Ginsburg, one of the court's liberals. But Souter said medical
marijuana's potential market in California alone includes tens of
thousands of chemotherapy patients who might use the drug to
counteract the side effects of their treatment. He said those patients
create a market for marijuana, legal or illegal, that "show(s) the
activity is economic."

Chief Justice William Rehnquist, who has thyroid cancer, missed
Monday's arguments and plans to remain home at least until Dec. 13,
when the court will adjourn for the holidays. Rehnquist plans to
continue to participate in decisions by reviewing transcripts of
arguments, Justice John Paul Stevens said Monday.

The court ruled four years ago that cooperatives set up in California
to grow pot for medical use could be prosecuted for drug trafficking.
But that decision did not address marijuana grown by patients, which
prompted the current case.

A decision is likely by next summer.