HIGH COURT TESTS MEDICAL POT CO-OPS

OAKLAND CLUB, NOT PROP. 215, IS AT ISSUE

Washington -- The Supreme Court sharply questioned defenders of an
Oakland marijuana buyers cooperative yesterday in a case that tests
the scope of California's law allowing people with debilitating
medical conditions to ease their symptoms by using marijuana.

U.S. vs. Oakland Cannabis Buyers' Cooperative marks the high court's
first venture into the controversial thicket of "medical marijuana,"
but does not pose a direct challenge to California's Compassionate Use
Act, which was passed as Proposition 215 in 1996 by 56 percent of
state voters.

The crux of the case is whether the buyers clubs that help patients
obtain marijuana violate federal drug law.

Several clients of the Oakland cooperative came to hear the case
yesterday, arguing that marijuana provides relief from pain and
dangerous levels of nausea in cancer and AIDS patients, can help lift
energy levels in severely ill people, and helps treat anorexia,
glaucoma and other illnesses.

Yvonne Westbrook of Richmond, who has multiple sclerosis, told
reporters that smoking pot "allows me to function somewhat as a human
being." Creighton Frost, who has throat cancer and spoke angrily
through a voice synthesizer, said, "All I want is to be left alone to
die comfortably."

But after hearing the justices' questions yesterday, medical marijuana
supporters came away prepared for a loss.

"We're gearing for a potential ruling that is coming down on a
negative side," said Jeffrey Jones, who heads the Oakland Cannabis
Buyers' Cooperative and was named as the chief respondent in the lawsuit.

The civil suit, brought by the Clinton administration in 1998, seeks
to close buyers clubs that sprang up in the wake of California's
initiative and similar laws subsequently passed in eight other states
- -- Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington.

The Justice Department prevailed in the district court, which placed
an injunction on the Oakland cooperative to stop distributing
marijuana to its clients. But that ruling was reversed in the Ninth
Circuit Court of Appeals. The Justice Department appealed to the
Supreme Court, which is expected to issue its ruling in June.

The Oakland cooperative, backed by a host of supporters who filed
legal papers, including the California Medical Association and
California Attorney General Bill Lockyer, argued among other things
that the buyers clubs are shielded from federal drug laws through a
"medical necessity" exemption.

They said despite federal drug statutes, traditional common law
provides a necessity defense that allows a law to be disobeyed, if
obeying it would bring greater harm than the law sought to prevent.

The Justice Department argued the common law defense does not apply to
marijuana, because Congress rejected its medical use in the Controlled
Substances Act of 1970 and explicitly reaffirmed that position in 1998.

The Justice Department also argued that the Food and Drug
Administration has not found marijuana to be "safe and effective" and
that allowing marijuana buyers clubs to flourish would invite
proliferation of drug operations.

Such action, it maintained, "opens the way for manufacturers,
distributors or users of other Schedule 1 drugs such as heroin or LSD
. . . to invoke 'medical necessity' as a defense to violation of the
nation's drug laws."

While Justices John Paul Stevens and Ruth Bader Ginsberg, both members
of the court's liberal wing, appeared sympathetic to the medical use
of marijuana, the other justices found flaws in the Oakland club's
case.

Justice Antonin Scalia drew a sharp distinction between individuals
and buyers clubs, saying the Oakland cooperative was asking the court
to extend the medical necessity exception to "somebody who opens up a
business. That's a vast expansion beyond any necessity defense I've
ever heard of before."

Justice Anthony Kennedy said the idea that buyers clubs or
individuals, as opposed to doctors, could be determining whether using
marijuana is a medical necessity would constitute "a huge rewriting"
of federal law.

But Kennedy also seemed to invite a future challenge by an individual,
saying, "You're asking us to hold that this defense exists . . . with
no specific plaintiff before us, no specific case."

Chief Justice William Rehnquist also shot down one of the
cooperative's chief arguments -- that Congress never contemplated
medical necessity in writing the drug statutes -- saying it "doesn't
make much sense" given that Congress specifically ruled out medical
use of marijuana.

Jones said he remained hopeful because whatever the ruling,
California's law will remain intact, so that individuals may still be
free to buy or cultivate marijuana for their own use, even if
distribution through a cooperative is ruled illegal.

Keith Stroup, executive vice president of the National Organization
for the Reform of Marijuana Laws, which submitted a
friend-of-the-court brief, agreed that a loss "doesn't mean they will
necessarily do away with the medical necessity defense, but it may
limit it to the patient."

Stroup added that the federal government has shown little interest in
criminal prosecutions of individuals, because prosecutors "would have
trouble getting convictions" against desperately sick people brought
before a jury for drug law violations.