SNUFFING MEDICAL POT

Snuffing Medical Pot

The thin hope that federal courts would create some legal space
for state medical marijuana laws disappeared yesterday like a puff
of smoke in a hurricane. To no one's surprise, the U.S. Supreme
Court unanimously ruled that the courts may not recognize a
medical necessity defense to the federal law barring distribution or
manufacture of marijuana.

As a practical matter, the court decision means an end to efforts to
set up organized distribution channels, such as the Oakland
Cannabis Buyers Cooperative, the defendant in the case, to serve
patients trying to obtain marijuana as permitted by California's
Proposition 215. Instead, medical marijuana advocates and patients
likely will resort to less institutionalized methods of distribution,
which federal authorities will find more difficult to control or
stamp out.

As a political matter, the court ruling leaves the federal government
in full collision with the wishes of voters here and in the eight
other Western states that have approved compassionate medical use
of marijuana, most of them by voter initiative.

Although three concurring judges, in an opinion written by Justice
John Paul Stevens, hint that there might be a medical necessity
exception for patient use of marijuana, if not for distribution of the
drug, the language of the court's decision, written by Justice
Clarence Thomas, leaves almost no legal wiggle room for medical
marijuana. The court has dropped the conflict between what Western
voters want -- a compassionate exception to marijuana laws for
patients who find the drug provides them relief -- and what
federal law permits right on Congress' doorstep.

The easiest way to resolve it is through some creative federalism.
States generally have the authority to regulate medical practice
and define medical necessity. Letting the states exercise that
traditional duty with respect to medical marijuana would be
consistent with the rest of medical regulation. The federal
government could then concentrate on funding more research to
determine what, if any, benefit marijuana offers, and how it might
best be used.

Such a division of labors wouldn't be a radical step. Even President
Bush, as a candidate, argued that decisions about whether to allow
marijuana to be used as a medicine should be left to the states and
their voters. But Congress remains out of step, and after yesterday's
Supreme Court decision, squarely on the spot to provide a more
compassionate response to the medical marijuana issue than just
saying no.