JUSTICES NARROWING ARGUMENTS IN MEDICAL MARIJUANA USE CASE

WASHINGTON -- Marijuana advocates smoked the plant on the steps of the
U.S. Supreme Court on Wednesday as the justices considered whether
seriously ill patients should be allowed to use it as medicine.

The court's ruling, expected by July, will settle whether marijuana
users and their suppliers can claim "medical necessity" as a defense
if they are caught breaking federal drug laws prohibiting the
cultivation, possession or distribution of pot.

It also could determine whether cannabis clubs, which are legal in
California and several other states that have passed medical marijuana
laws, can resume distribution of the drug without fear that the
federal government will shut them down.

Since the mid-1990s, California, Oregon, Alaska, Washington, Maine,
Arizona, Nevada, Colorado, Arkansas, Hawaii and Washington, D.C., have
legalized marijuana for medical use. Legislation also is pending in
many other states, including Texas.

But federal prosecutors in California challenged the law, filing suit
against the Oakland Cannabis Buyers Cooperative and five other
marijuana distributors in 1998.

Gerald Uelman, a lawyer who argued the case for the cannabis clubs,
said medical need should shield the patients and their suppliers from
prosecution under the federal Controlled Substance Act.

California Attorney General Bill Lockyer also is backing the clubs,
arguing that the state has the right to enforce its "compassionate
use" law, passed by referendum in 1996, which allows patients access
to marijuana if they have a doctor's recommendation.

But Acting Solicitor General Barbara Underwood told the justices that
any exemption in the law for "marijuana pharmacies" undermines the
nation's ability to fight drug trafficking and exposes patients to a
drug that has no government-recognized medical use but a high
potential for recreational abuse.

Justice Ruth Bader Ginsburg asked Underwood about anecdotal evidence
suggesting that some cancer and AIDS patients have successfully used
marijuana to ease pain and alleviate the nausea that is often a side
effect of chemotherapy and other treatments.

She used the example of a man with cancer who was constantly vomiting
and had tried other remedies unsuccessfully. With his doctor's
blessing, he smoked marijuana and found it helped him control what
Ginsburg called his "extreme suffering."

"That is not an uncommon experience," she said. "Am I wrong in
thinking there has been quite a bit of this going on?"

Justice Antonin Scalia noted that federally sponsored studies on
marijuana have not concluded that the drug is "never ever helpful,"
but only that, in view of the potential for abuse, it's better to
prohibit it.

But he questioned whether marijuana distributors could prove a medical
need for the drug even if the high court were to rule in their favor
and acknowledge that need is a legitimate excuse for breaking the law.
The patients themselves, he said, could afford to take the risk of
being prosecuted for possession, especially if they believe marijuana
is their only hope for survival.

"If he really thinks he's gonna die, that's an easy gamble -- facing a
jury versus the grim reaper," Scalia said. "I'd take the jury any day."

But protecting the distributors of the drug would be a "vast expansion
beyond any necessity defense I've ever heard of," he said.

Justice Anthony Kennedy appeared to agree. "You're asking us to hold
that this defense exists," he told Uelman, "with no specific plaintiff
before us, no specific case."

And Chief Justice William Rehnquist asked Uelman to define how sick a
patient would have to be to justify breaking the federal law by using
marijuana, questioning whether the drug is really life-saving.

"How serious does a case have to be ... a stomach ache?" he
asked.

Uelman said that under the current federal court ruling in the
California case, marijuana can be provided only to patients who have a
doctor's permission, have exhausted other remedies and who are facing
"imminent harm" -- such as blindness, starvation or death -- if they
are denied access to the drug.

Medical marijuana advocates outside the courthouse said that in the
example of the Oakland cannabis club, about 8,000 people have been
qualified to receive medical marijuana under California's law, but
under the narrow exemption carved out by the federal court, only 14 of
those patients would be shielded from federal prosecution.

Still, Kennedy questioned whether the narrow exemption is narrow
enough.

"It doesn't sound limited to me at all," he said. "That's a huge
rewrite of the statute."

The Justice Department under the Clinton administration brought the
case to the Supreme Court after the 9th U.S. Circuit Court of Appeals
overruled a lower court's ruling in favor of the government. The 9th
Circuit had sent the case back to U.S. District Judge Charles Breyer,
Supreme Court Justice Stephen Breyer's brother, demanding that he
write an exemption allowing seriously ill people access to the drug.

Breyer did so, but the federal government appealed to the Supreme
Court and got an injunction stopping that exemption from taking effect
until the high court decides the case.

Because of his brother's involvement, Justice Breyer has removed
himself from participating in the decision. In the event of a 4-4 tie
among the remaining eight justices, the 9th U.S. Circuit's ruling in
favor of medical marijuana advocates would be the law for that circuit.

On the courthouse steps Wednesday, several patients held up baggies of
pot and pill bottles filled with marijuana cigarettes. Some smoked as
they talked to reporters, using marijuana purchased legally through a
federally sponsored program that currently provides medical marijuana
to eight patients.

That program stopped accepting new patients during the administration
of former President Bush when a huge wave of AIDS patients seeking
treatment overwhelmed it.

White House spokesman Ari Fleischer said the current president also
opposes legalizing marijuana, including for medicinal purposes, though
he also agrees that states like California have a right to pass
"compassionate use" laws through referendum.

"He strongly supports the current federal law," Fleischer
said.