Justices weigh medical exceptions to marijuana ban
WASHINGTON (AP) – The Supreme Court took a first look at prescription pot Wednesday, hearing arguments on an issue that has pitted the federal government against cancer, AIDS and other patients who sometimes regard marijuana as a wonder drug.
As far as the federal government is concerned, marijuana is illegal and should remain so. Federal enforcement efforts have led to confrontations and arrests in California and other Western states.
The issue for an openly skeptical Supreme Court is whether a patient’s need for marijuana trumps a 1970 federal law that classifies it as an illegal substance with no known medical value.
President Bush supports federal prohibitions on marijuana, but also respects states’ rights to pass voter initiatives, as was the case in California, spokesman Ari Fleischer said.
”The president is opposed to the legalization of marijuana, including for medicinal purposes,” he said Wednesday.
Lawyers for the Oakland Cannabis Buyers’ Cooperative in California want to make what they call a ”medical necessity” defense in federal court, and argue that federal judges and juries have the power to decide if the drug is warranted.
Several justices seemed to think that approach was a stretch at best.
”I thought the medical necessity defense was for an individual,” Justice Antonin Scalia said. ”You would extend it to the person prescribing the drug, and even to opening a business,” to dispense it.
”That’s a vast expansion beyond any necessity defense I’ve ever heard of,” Scalia said.
Justice Anthony M. Kennedy seemed to agree.
”You’re asking us to hold that this defense exists … with no specific plaintiff before us, no specific case,” Kennedy told the club’s lawyer, Gerald Uelmen.
The court’s ruling is expected by the end of June.
A ruling for the Oakland club would allow special marijuana clubs to resume distributing the drug in California, which passed one of the nation’s first medical marijuana laws in 1996.
A ruling for the federal government would not negate the California voter initiative, but effectively would prevent clubs like Oakland’s from distributing the drug openly.
One of the most vocal opponents of legalized prescription marijuana is Barry McCaffrey, the Clinton administration’s drug policy director. He once dismissed the practice as ”Cheech and Chong medicine,” a reference to the comedy team that celebrated pot-smoking.
Advocates of medical marijuana say the drug can ease side effects from chemotherapy, save nauseated AIDS patients from wasting away or even allow multiple sclerosis sufferers to rise from a wheelchair and walk.
There is no definitive science that the drug works, or works better than conventional, legal alternatives. Nonetheless, nine states have laws allowing the legal use of marijuana to treat a host of ailments.
Scalia challenged Uelmen to list medical emergencies that could require marijuana treatment.
”Death, starvation, blindness,” Uelmen began.
”Stomach ache?” Scalia interrupted with an edge of sarcasm.
Representing the government, Barbara Underwood, a holdover from the Clinton administration Justice Department, said the 1970 Controlled Substances Act ”leaves no room for the Oakland Cannabis Buyers Cooperative” and others to act as ”marijuana pharmacies.”
Bush’s choice as chief advocate before the Supreme Court, Theodore Olson, has not been confirmed by the Senate.
Several states are considering medical marijuana laws, and Congress may revisit the issue this year. A measure to counteract laws like California’s died in the House last year.
Activists on both sides gathered outside the court.
The Clinton administration sued to stop distribution by the Oakland group and five other California clubs in 1998.
U.S. District Judge Charles Breyer, brother of Supreme Court Justice Stephen Breyer, sided with the government. All the clubs except the Oakland group eventually closed down, and the Oakland club turned to registering potential marijuana recipients while it awaited a final ruling.
The 9th U.S. Circuit Court of Appeals reversed, ruling that medical necessity is a legal defense. Charles Breyer followed up by issuing strict guidelines for making that claim.
Stephen Breyer will not participate as the other eight justices consider their ruling. Should the court divide 4-4, the appeals court ruling would stand.
Voters in Arizona, Alaska, Colorado, Maine, Nevada, Oregon and Washington also have approved ballot initiatives allowing the use of medical marijuana. In Hawaii, the Legislature passed a similar law and the governor signed it last year.
The case is United States v. Oakland Cannabis Buyers Cooperative, 00-151.
On the Net:
Supreme Court site: http://www.supremecourtus.gov
For the appeals court ruling in U.S. v. Oakland Cannabis Buyers’ Cooperative: http://www.uscourts.gov/links.html, and click on 9th Circuit.
Oakland Cannabis Buyers’ Cooperative: http://www.rxcbc.org
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