MEDICAL POT PITCH: RIGHT TO EASE PAIN

Court Hears New Case For Legal Marijuana

Northern California medical marijuana clubs made another bid for legal
status Wednesday, telling a federal appeals court that the use of a drug to
ease severe pain is a basic right that should override federal narcotics laws.

The case offers the only opportunity to decide "whether Americans have a
fundamental constitutional right to relieve their pain," Gerald Uelmen, a
Santa Clara University law professor, told a panel of the Ninth U.S.
Circuit Court of Appeals in San Francisco.

The three-judge panel -- which has already seen one of its rulings in favor
of the marijuana clubs overturned by the U.S. Supreme Court -- seemed
sympathetic to Uelmen's position but dubious about his legal argument.

Judge Stephen Reinhardt noted that the same constitutional right -- to be
free of debilitating pain -- was asserted in an earlier suit that
challenged a state law against doctor-assisted suicide. The appeals court,
in a ruling by Reinhardt, agreed that such a right existed in 1996 but was
overruled by the Supreme Court in 1997.

"The Supreme Court did not seem to understand that argument," Reinhardt
said, with a rueful smile.

A different panel of the appeals court is now considering a Bush
administration challenge to an Oregon law allowing doctor-assisted suicide.

Uelmen represents a Santa Cruz cooperative that is seeking to recover the
marijuana seized by federal agents in a raid last September. Marijuana
clubs in Oakland, Fairfax and Ukiah are appealing injunctions obtained by
federal authorities that prohibit them from distributing marijuana to
patients. About three dozen similar organizations have sprung up statewide
since California voters approved a medical marijuana initiative in 1996.

The appeals court ruled in 2000 that the federal ban on marijuana did not
prohibit distribution of the drug to severely ill patients whose doctors
had recommended it, and who were not helped by federally approved
medicines. The Supreme Court overturned that ruling in 2001, spurring a
series of federal raids and prosecutions of pot suppliers in California.

Wednesday's hearing involved constitutional challenges to federal
enforcement actions, which the Supreme Court did not address in 2001. One
was Uelmen's claim that the right to life and liberty under the
Constitution includes a right to use a substance that offers relief from
extreme pain or from disabling effects of conventional treatment for cancer
or AIDS.

"If a dying cancer patient is able to live one more day without vomiting .
. . what interest does the federal government have in sending armed agents
to his bedside?" Uelmen asked.

Justice Department lawyer Mark Quinlivan replied that the courts have
upheld Congress' authority to classify marijuana as a substance with no
recognized medical use. Quinlivan said the appeals court rejected a similar
constitutional claim years ago by a terminally ill cancer patient who
believed he could be cured by Laetrile, an apricot pit derivative that is
unapproved for medical use and banned in interstate commerce.

"There is a (constitutional) right to treatment but there is no right to
unapproved drugs to relieve pain," Quinlivan said.

The clubs also argued that Congress' power to regulate interstate commerce
doesn't cover marijuana that is grown and distributed entirely in
California. But Quinlivan said the courts have upheld Congress' conclusion
that homegrown marijuana contributes to interstate drug trafficking.