MEDICAL POT IN SUPREME COURT

Justices Question Whether Need Should Beat Laws.

WASHINGTON -- Skeptical-sounding U.S. Supreme Court justices 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 doubts about whether medical necessity should trump
federal drug laws.

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

The Oakland cannabis club wants to keep 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," cannabis club
lawyer 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 use of the drug. Courts have recognized "necessity" as a defense for
centuries. To succeed, the act typically must be the lesser of two evils,
necessary to avoid imminent harm, and lacking in legal alternatives.

The San Francisco-based 9th U.S. Circuit Court of Appeal determined that
such a defense could be raised by the cannabis club, whose activities were
first blocked in a civil action brought by the Clinton administration. The
Bush administration has followed through, claiming that 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 the
East Bay city of Richmond and smokes marijuana to alleviate distress from
multiple sclerosis. Standard pharmaceutical drugs make her too wiped out to
function, Westbrook said before rolling her wheelchair into court.

Creighton Frost, a 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 two to four years to
live; he gives himself longer.

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

The court's interest, though, was not in such professed rights, but in
which legal principles 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.