TOP COURT SAYS NO TO MEDICAL MARIJUANA USE

The Law: Ruling Undercuts Initiatives Adopted In California And Elsewhere

But Distributors, And Some Law Enforcers, Say Practice Will Persist

WASHINGTON--The Supreme Court dealt a defeat Monday to the medical
marijuana movement, ruling that federal law prohibits dispensing the drug
to seriously ill patients to relieve their pain and nausea.

As a legal matter, the 8-0 ruling all but invalidates the measures adopted
in California and eight other states that give sick people a "right" to
obtain marijuana for medical purposes. Because federal law trumps state laws,

Monday's ruling makes clear that the distribution of marijuana is illegal
throughout the United States. However, it is not clear that federal
authorities will be able to enforce their prohibition on marijuana.

Advocates of medical marijuana said they are confident that jurors in
California and the other states will not convict those who are charged with
giving marijuana to sick people. Moreover, federal agents are spread too
thin to enforce the law, they said. "There are 700 [Drug Enforcement
Administration] agents in California and 1.5 million marijuana users," said
Bill Zimmerman, executive director of the Americans for Medical Rights in
Santa Monica.

Nonetheless, Monday's ruling could force the closure of the handful of
so-called buyers cooperatives, or cannabis clubs, that sprouted after the
California initiative, Proposition 215, won approval in 1996. U.S.
attorneys will be able to go to court and seek orders shutting down these
organizations. Violators of such orders can be fined or jailed. This
enforcement method puts the issue directly before federal judges and allows
authorities to avoid a jury trial.

California was the first state in the nation to approve a measure giving
seriously ill people a "right to obtain" marijuana for medical purposes.
Monday's decision also applies to the eight other states that have similar
measures: Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and
Washington.

Nathan Barankin, a spokesman for California Atty. Gen. Bill Lockyer, said
that "it doesn't appear" that the court has thrown out the California
proposition. The attorney general's office will meet with local law
enforcement officials in coming days to map out a state response to the
court's ruling.

But Marsha Cohen, a professor at UC Hastings College of the Law and a
specialist in pharmacy law, said the decision puts a cloud over the
California law and "makes what Proposition 215 was attempting to give a
certain category of sick people in California more difficult."

The clubs had mushroomed to fill a hole in the ballot measure, Cohen said:
basically the lack of any specific way that marijuana could be distributed
legally to the seriously ill. "What the clubs have been doing is not even
legal under state law, and yet state enforcement officials have looked the
other way," she said. "The Feds have stopped looking the other way. Now
that they have this decision, I think it will embolden them to try to shut
down the clubs."

The case that reached the Supreme Court grew out of a federal move to shut
down six cannabis clubs in the Bay Area. In 1998, U.S. attorneys brought a
civil suit seeking to close the Oakland Cannabis Buyers Cooperative for
violating federal law. U.S. District Judge Charles Breyer, younger brother
of Supreme Court Justice Stephen G. Breyer, agreed and ordered the closure.
But the U.S. 9th Circuit Court of Appeals sided with the cooperative and
said the drug laws include an implied exception for "medical
necessity." In response, Judge Breyer allowed the club to give marijuana
to patients under extremely limited circumstances. They must be "seriously
ill and will suffer imminent harm" without it, and there must be "no
reasonable legal alternative" that would alleviate their suffering.

For the Justice Department and the Supreme Court, that exception went too
far. In August, the Clinton administration asked the justices to block
Breyer's order, and the court did so. And on Monday, the court officially
overruled the 9th Circuit in the case of U.S. vs. Oakland Buyers
Cooperative, 00-151.

Justice Clarence Thomas, writing for the court, said federal drug laws
leave no room for compassionate exceptions to zero-tolerance federal drug
laws. Congress' decision in 1970 to add marijuana to its list of
illegal drugs "reflects a determination that marijuana has no
medical benefits," Thomas said. "Indeed, for the purposes of the
Controlled Substances Act, marijuana has no currently accepted medical use
at all."

Thomas wrote the opinion on behalf of himself, Chief Justice William H.
Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Anthony M.
Kennedy. Three liberal justices concurred in the result and stressed the
ruling dealt narrowly with distribution of marijuana, not its use.

In a footnote, Thomas struck back and disagreed with the liberals. "The
very point of our holding is that there is no medical necessity exception
to the prohibitions at issue even when the patient is seriously ill and
lacks alternative avenues for relief," he wrote. This suggests the majority
believes using marijuana is illegal as well.

Justice Breyer abstained because of his brother's role.

Despite the ruling, the medical marijuana laws passed by the states retain
some practical significance. Those measures put a limit on local police
and state prosecutors. California's measure bars law enforcement officials
from arresting or prosecuting those who give marijuana for the purpose of
comforting someone who is seriously ill.

As a result, a police officer in the Los Angeles area would not be
authorized to arrest a person with AIDS or cancer who has marijuana, even
though a federal drug agent might arrest the same person for the same conduct.

This conflict between federal and state law enforcement is likely to
cause much confusion and more litigation. The court's ruling does not
squarely address whether the use of marijuana by sick people is illegal.
Zimmerman, the medical marijuana activist, noted that the ruling focused
narrowly on the distribution of marijuana. "This does not go to an
individual's right to use or grow marijuana," he said.

Perhaps what is most striking in the Supreme Court's opinion is that it
does not discuss states' rights, which goes to the heart of the issue.
Often, the court's conservative majority champions states' rights when a
conflict arises with federal laws. Six years ago, the justices, on a 5-4
vote, struck down a federal law that made it a crime to a have a gun near a
school and opined that crime is ordinarily a matter for the states.

However, the same five justices joined together Monday to rule that drug
laws are ordinarily a federal matter, not a state issue. In his separate
opinion, Justice John Paul Stevens tweaked the conservatives for their
"unfortunate" failure in this case to "show respect for the sovereign
states that comprise our Federal Union."

Meanwhile, debate about the virtues of marijuana continues. The California
Medical Assn. says marijuana "may be appropriate under certain
circumstances," and it sharply criticized the Supreme Court's ruling for
restricting the options available to physicians. "Both Congress and the
courts should defer these intensely personal and potentially life-saving
decisions to physicians and their patients," said Dr. Frank Staggers,
president of the association.

But Dr. Gary Cohan, who treats AIDS patients, says he relies on Marinol, an
Federal Drug Administration-approved drug that includes the active
ingredients in marijuana. "It is a pill, a purified form of the drug, and
it cuts nausea. But you don't have the combustion of a weed," said Cohan,
who practices at the Pacific Oaks Medical Group in Beverly
Hills. Zimmerman, the medical marijuana activist in Santa Monica said
smoking the drug is more effective. "Marinol is not a good substitute," he
said. "If it were, why would tens of thousands of patients risk arrest to
get medical marijuana?"