SUPREME COURT TACKLES MEDICAL POT QUESTION

Doubts Raised On Trumping Of Federal Law

WASHINGTON -- Skeptical-sounding Supreme Court justices on Wednesday
confronted the sobering question of medical marijuana use.

Watched closely by clients of the Oakland Cannabis Buyers' Cooperative,
some of whom already had taken a therapeutic morning toke, the nation's
highest court raised serious doubts about whether medical necessity should
trump federal drug laws.

"You're asking us to say this defense exists in broad, sweeping terms,"
Justice Anthony Kennedy told the cannabis club's attorney.

The Oakland cannabis club wants to continue providing marijuana to its
4,500 registered members. Because the club's activities are protected under
state law but still subject to federal law, the club also wants to be able
to deploy the legal defense of "medical necessity" when facing federal
prosecution.

"It's a classic illustration of a 'choice-of-evils' defense," canna-bis
club attorney Gerald Uelman said during the hourlong oral argument.

In other words: Breaking marijuana laws is less harmful than the death or
serious disability that medical marijuana proponents say they are avoiding
by using the drug.

The San Francisco-based 9th U.S. Circuit Court of Appeals determined that
such a defense could be raised by the cannabis club, whose activities were
first blocked in a civil action by the Clinton administration. The Bush
administration has followed through, claiming the Controlled Substances Act
left no room for such a medical necessity defense.

"It undermines the ability of the act to protect the public," Acting
Solicitor General Barbara Underwood told the court, adding that "the co-op
and its members have alternatives to violating the law."

The Oakland Cannabis Buyers' Cooperative members in the packed Supreme
Court chambers quietly disagreed. Yvonne Westbrook, for one, lives in
Richmond and smokes marijuana to alleviate distress from multiple
sclerosis. Standard pharmaceutical drugs make her too wiped out to
function, Westbrook explained before rolling her wheelchair into the court
hearing.

Creighton Frost, a weathered 47-year-old San Ramon resident and former pack
animal wrangler, took his first marijuana puff Wednesday about 7 a.m. --
four hours before the court's arguments began. Throat cancer forced the
removal of his voice box. He inhales the marijuana smoke, which he says
enables him to eat and sleep, through a hole in his throat that he then
covers with a finger to keep the smoke in. The doctors give him between two
and four years to live; he gives himself longer.

"We have a right to die comfortably," Frost said before the oral arguments
began. "We have a right not to fight with our medications."

The court's interest, though, was not in such professed rights, but in what
legal principles should apply. Kennedy termed the notion of a
medical-necessity defense "a huge rewriting of the statute."

His fellow swing vote on the court, Justice Sandra Day O'Connor, likewise
sounded doubtful when she referred to a "blanket exception" to the federal
Controlled Substances Act and the "kind of a blanket medical-necessity
defense" authorized by the 9th Circuit.

Justice Antonin Scalia pressed even harder, pointing out that the necessity
defense typically covers the endangered person who commits the act --
unlike the Oakland Cannabis Buyers' Cooperative, which is citing necessity
to protect transactions even though it is not itself the endangered party.

"That's a vast expansion beyond any necessity defense I've ever heard of,"
Scalia said. "You're saying that as a result of the necessity defense, you
could set up a business to provide the necessity."

One unusual possibility is a tie vote: Justice Stephen Breyer recused
himself, because his younger brother, U.S. District Judge Charles Breyer,
ruled on the case at a lower level. Judge Charles Breyer initially issued
an injunction to stop the cannabis club. After the 9th Circuit ruled he had
the discretion to consider medical necessity, he modified the injunction to
allow continued use by those who could meet the strict necessity requirements.

Justice Stephen Breyer's recusal leaves eight Supreme Court justices to
decide. If they tie 4-4, that would mean the 9th Circuit's ruling remains
intact and the Oakland club -- and others in the Western states served by
the 9th Circuit -- could try the medical necessity defense.

Even then, though -- and even if the Oakland club wins outright -- the
medical-necessity defense could only help the small minority of patients
facing the most extreme circumstances. A High Times writer explained
Wednesday that he uses marijuana for migraine headaches; that probably
wouldn't fit under the necessity umbrella.

"All the (9th Circuit) has done is create a very narrow exception, for a
very narrow population," Uelman said.

No matter how the court rules, California's 1996 Compassionate Use Act
permitting medical marijuana use under state law is likely to remain
intact. Seven other states have similar laws that likewise probably will be
unaffected by the court's ruling.

That's because the justices steered clear of constitutional arguments about
state law Wednesday, focusing narrowly on whether or not the cannabis club
can legally distribute marijuana.

As signal-sending, though, the future ruling could ring loud and clear.
California Attorney General Bill Lockyer filed a friend-of-the-court brief
supporting the Oakland cannabis club, on the grounds that the federal
government shouldn't interfere with state business.