Court to decide if patients can get illegal drug

Wednesday, March 28th 2001, 12:00 am
By: News On 6

WASHINGTON (AP) _ Seriously ill people who claim marijuana is nothing short of a miracle drug are watching anxiously as the Supreme Court examines whether the drug may be dispensed legally.

The court's watershed ruling, expected by June, likely will settle whether patients may get marijuana as a ``medical necessity'' even though it is an illegal drug under federal law.

A ruling for the Oakland Cannabis Buyers 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 would effectively prevent clubs like Oakland's from distributing the drug.

A vocal assortment of interest groups and activists supporting the use of marijuana as medical treatment have mounted an energetic public relations campaign ahead of Wednesday's oral arguments.

``No matter what the Supreme Court does, the medical marijuana movement has won,'' said Kevin Zeese, president of Common Sense for Drug Policy, a group promoting medical marijuana use and reform of drug laws generally.

``There is no way the federal government can put this genie back in the bottle,'' Zeese said.

A ruling against the club would mean the government could prosecute distributors aggressively in federal court, regardless of whether states have approved medical marijuana use. That would force providers underground or out of business altogether, advocates of medical marijuana say.

Gerald Uelman, lawyer for the Oakland club, said he is optimistic the court will see the case not as a referendum on medical marijuana, but as a rather ordinary legal examination of whether lower federal courts used their powers correctly. That would leave aside grander constitutional challenges to a 1970 federal drug law that found no medical use for marijuana.

``We're trying to structure the argument as narrowly as possible in this case,'' Uelman said. ``We want the court to render a very narrow decision.''

California Attorney General Bill Lockyer is backing the Oakland club, arguing that the state has the right to enforce its law allowing seriously ill patients to use marijuana.

Some patients and doctors say the drug relieves nausea, improves energy levels and helps combat the symptoms of ailments ranging from cancer to AIDS to glaucoma and multiple sclerosis.

The Clinton administration sued the Oakland Cannabis Buyers Club and five other California distribution clubs in 1998, arguing that the clubs broke federal drug law by distributing, and in some cases growing, marijuana for medical use.

U.S. District Judge Charles Breyer, brother of Supreme Court Justice Stephen Breyer, sided with the government. All the clubs except for the Oakland group eventually closed down, and the Oakland club turned to registering potential marijuana recipients while it awaited a final ruling.

Last year, an appeals court revived the case by ruling that ``medical necessity'' is a legal defense, and Judge Breyer followed up by issuing strict guidelines for making that claim.

Before leaving office, the Clinton administration appealed to the Supreme Court.

The government said the Oakland club flouted the law and continued to distribute marijuana after an order to stop. Then-Solicitor General Seth Waxman also rejected the notion that marijuana could be a medical necessity, and said Congress had spoken clearly on the issue in the broad 1970 law that regulated drug distribution.

A lower court ``may not override those determinations by reweighing the scientific and medical data and social policies considered by Congress, the attorney general and the secretary of Health and Human Services, and concluding that the public interest supports the illegal distribution of marijuana,'' Waxman wrote in legal papers.

Another Justice Department attorney will argue Wednesday's case for the government. President Bush's choice to succeed Waxman, Theodore Olson, has not yet been confirmed by the Senate.

Justice Breyer will not hear the Supreme Court case nor participate as the other eight justices consider their ruling. Should the court divide 4-4, the appeals court ruling would stand and the marijuana club would be back in business.

Voters in Alaska, Colorado, Maine, Nevada, Oregon and Washington also have approved ballot initiatives allowing the use of medical marijuana. In Hawaii, a similar law was passed by the legislature and signed by the governor in June 2000.