MEDICAL MARIJUANA USE CHALLENGED

Court Reluctant To Override Drug Law Despite Pleas That It Eases Patients' Pain

WASHINGTON -- The Supreme Court appeared unconvinced Wednesday by arguments
that seriously ill patients should be able to use marijuana to ease their
suffering without fear of violating federal drug law.

During a vigorous hour-long session, some justices seemed sympathetic to
the plight of patients who say they have no alternatives. But a majority
did not appear ready to effectively override federal law by allowing a
"medical necessity" defense for marijuana use.

The case before the court rose from California, where voters in 1996
adopted a proposition to allow medical marijuana. The U.S. government
responded by moving to block the state law's effect, leading to one of the
high court's most-watched cases this term.

The case pits public health groups and civil libertarians against anti-drug
forces and parents' organizations. It measures the nation's "war on drugs"
against efforts to find alternative therapies for cancer, AIDS, multiple
sclerosis and other complex illnesses.

Besides California, eight other states have laws allowing the medical use
of marijuana. The federal government says that although those initiatives
may exempt marijuana use from state prosecution, federal anti-drug laws
still apply.

Acting U.S. Solicitor General Barbara Underwood urged the court to reject
arguments for a "medical necessity" defense that would spare patients and
their marijuana providers from federal prosecution or civil lawsuits. She
said that in outlawing marijuana, Congress rejected the idea that the drug
has any benefits.

"There is currently no accepted use for the drug," she said, adding that it
also is highly likely to be abused. She asked the justices to reverse a
ruling by the U.S. Court of Appeals for the 9th Circuit that there could be
a common-law "medical necessity" defense to federal drug statutes.
Reversing an order that shut down cannabis clubs, the appeals court cited a
"public interest in the availability of the doctor-prescribed treatment
(to) relieve the pain and suffering of a large group of persons."

Lawyer Gerald Uelmen, representing the Oakland Cannabis Buyers' Co-op,
argued that the court should adopt that rationale. Uelmen said people
facing "imminent harm" should be able to take advantage of marijuana's
benefits. The drug is known for easing the nausea that comes with
chemotherapy, stimulating the appetite of AIDS patients and relieving the
misery of other conditions such as multiple sclerosis.

"The (medical necessity) defense should be available to any patient in any
state," Uelmen said, regardless of whether a state has legalized marijuana.

"It's a sweeping proposition," declared Justice Anthony Kennedy. Justice
Sandra Day O'Connor was similarly skeptical of having a "blanket medical
necessity defense" that could supersede federal law that bans the
possession or distribution of marijuana.

Chief Justice William Rehnquist asked how truly desperate patients might be
screened from those who simply want to use marijuana. He was sympathetic to
the government's argument that if Congress had believed there was a valid
medical use, it would not have included it under the strictest
controlled-substances laws. Other justices focused on the needs of
seriously ill people for whom conventional treatments fail.

"Should we assume there are no such people?" Justice John Paul Stevens
asked. Underwood said yes.

Justice Ruth Bader Ginsburg, a recent cancer survivor and chemotherapy
patient, asked about evidence in court filings that the drug has been used
to relieve patients' vomiting and other conditions. "Am I wrong in thinking
there has been quite a bit of this going on in the medical profession?"

Underwood said there are alternatives to the drug.

Justice David Souter focused on the government's effort to undermine
California's Proposition 215 by seeking an injunction in federal court to
block cannabis clubs from distributing marijuana, rather than by
prosecuting users or providers. Souter questioned whether the government
did that because it could never win a prosecution in a jury trial. He cited
the popularity of California's medical marijuana law.

Underwood said the Justice Department wanted to resolve the dispute with a
single move, particularly because it adamantly disputes the medicinal
claims. In this case, a district court judge rejected the clubs'
"necessity" defense but then was overturned by the 9th Circuit. (The
district court judge was Charles Breyer, brother of Supreme Court Justice
Stephen Breyer. Justice Breyer recused himself from Wednesday's case.)

The tension over the case was evident in the many briefs filed here. The
National Organization for Reform of Marijuana Laws told the justices that
"this case is not about a right to get 'stoned,' . . . (but) the right of
personal medical choices of the chronically and terminally ill." On the
other side, the Family Research Council said legalizing medical marijuana
would change "attitudes toward the perceived dangerousness of illicit drug
use."

Also Wednesday, the justices considered whether U.S. copyright law requires
publishers to get permission from freelance writers before putting the
writers' stories from print editions into electronic databases.

The New York Times, backed by media groups including Gannett Co., which
publishes USA TODAY, says the electronic versions made available to
commercial services are successors to microfilm and microfiche. The Times
says they are not new uses of the work that infringe on an author's work.