COURT SCRUTINIZES MEDICAL MARIJUANA

U.S. Supreme Court justices questioned Wednesday whether marijuana is the
last resort for seriously ill patients, as advocates have asserted in
California, Maine and other states allowing for its medicinal use.

Even if smoking marijuana is a medical necessity for AIDS and cancer
patients to overcome nausea and weight loss, several justices suggested
that Congress explicitly banned doctors from prescribing it in a 1970 law
for lack of proof of medical benefit.

The high court's decision in the case is significant because of the
conflict between federal law, which bans the sale of the drug, and
referendums in Maine and eight other states that allow for the medicinal
use of marijuana.

"It doesn't sound limited at all," Justice Anthony Kennedy said of
non-medical people distributing a federally regulated drug. "That's a huge
change."

The California case that the justices are specifically looking at involves
the Oakland Cannabis Buyers' Cooperative, which distributed marijuana to
ill patients who received a doctor's recommendation.

The case has nationwide implications because nine states, including Maine,
have similar laws that allow seriously ill patients to use marijuana to
remedy their symptoms from harsh AIDS medications, chemotherapy or
spasticity of multiple sclerosis.

In addition to California and Maine, the other states allowing for the
medical use of marijuana are: Alaska, Arizona, Hawaii, Oregon, Washington,
Nevada and Colorado.

Cumberland County Sheriff Mark Dion and state Sen. Anne Rand, D-Portland,
filed a joint legal brief in the California case before the Supreme Court,
voicing their support for the medical use of marijuana.

The legal hitch in the state laws has been how to distribute the drug to
patients too sick or unable to grow their own plants. While the California
law and the 1999 Maine referendum allow patients to possess marijuana for
their own use, distribution remains federally prohibited.

Maine officials are still grappling with how to allow distribution, forcing
patients to buy the drug on the black market.

In California, federal prosecutors asked a U.S. District Court to close the
club under a civil order, but the 9th Circuit Court of Appeals overturned
that decision, saying the government had not effectively disputed the claim
that the drug was the "the only effective treatment for a large group of
seriously ill individuals."

On Wednesday, Justice Stephen Breyer did not participate in the case
because his brother, Charles Breyer, was the District Court judge in the case.

The Supreme Court could act broadly in its decision, which is expected in
June, and prohibit drug-distribution clubs. Or it could allow the 9th
Circuit's decision to stand, setting rules for how clubs could operate.

Several justices seemed to side with federal lawyers, who argued that the
1970 Controlled Substances Act prohibited marijuana sales even with a
doctor's prescription.

"There is no medically necessary defense at all," said Acting Solicitor
General Barbara Underwood.

Chief Justice William Rehnquist asked Gerald Uelman, a California lawyer
representing the marijuana club, what standards would cover the
distribution of drugs that are otherwise illegal.

Uelman said the illness must be life-threatening, such as AIDS, or involve
imminent harm, such as starvation from nausea, from drugs.

"Stomachache?" asked Justice Antonin Scalia, saying that "harm" was a broad
term.

"No," Uelman said. "I think we're talking about much more serious harm."

Hundreds of years of common law allow criminal defendants to argue that a
drug was needed for medical necessity, as a last resort for the seriously
ill, Uelman said. He argued that his theory would apply in all states, not
just ones where voters approved use of medicinal marijuana.

"By letting someone die, you are violating the law," Uelman said.

But Rehnquist suggested that Congress overruled the common law by
specifically outlawing marijuana. Several justices expressed reservations
about allowing a patient to roll the dice with a doctor to try drugs that
Congress prohibited or that the Food and Drug Administration hadn't
confirmed as effective. Justices focused many of their questions on how the
law would stop marijuana clubs. With a choice of pressing criminal charges
or asking a judge for a civil injunction, prosecutors in California pursued
a civil case that avoided a jury trial. Prison sentences are possible for
contempt for violating an injunction, but prosecutors sought only to
padlock the clubs, Underwood said.

"This is just a nuisance action in federal court," Justice Anthony Kennedy
said.

Justice Davis Souter voiced the concern that jurors in a state where a
majority of voters approved the use of medicinal marijuana might be
reluctant to convict a defendant accused of distributing marijuana to
sympathetic characters such as the seriously ill.

But Scalia ridiculed the notion that prosecutors would avoid jury trials.
"California juries only enforce the laws they like, is that it?" he asked
to laughter. "If a U.S. attorney is trying to avoid a jury, he ought to be
replaced," he said later.