Court weighs exception to marijuana ban

Advocates argue today that 'medical necessity' excuses compliance with US law.

There is no fundamental right under the US Constitution to consume illegal narcotics.

When the nation's Founders wrote of "the blessings of liberty," they were not alluding to guaranteed consumption of recreational drugs deemed by federal regulators and national lawmakers to be devoid of healthful benefits.

But what about people under the care of a physician who believes that smoking marijuana may help alleviate their suffering? Do those patients have a basic right to pursue the type of treatment they deem most appropriate, without interference or second-guessing from the federal government?

Today, the thorny debate over the medical use of marijuana arrives at the US Supreme Court, where the justices are being asked to carve out a limited but clear exception to the federal ban on marijuana sales and use.

At issue in the case - US v. Oakland Cannabis Buyers' Cooperative - is whether the court should endorse the idea that distributors and users of marijuana who are acting under a "medical necessity" should be excused from compliance with federal drug laws.

Under existing laws in certain states, such a determination of medical necessity would be made by a treating physician. Advocates say this would help prevent the program from becoming a Trojan horse for drug dealers and traffickers. They say eventually marijuana should be available as a prescription drug sold in pharmacies.

Proponents of strict drug laws warn that so-called compassionate use of marijuana is merely a first step toward total legalization. And any easing of a complete ban, they say, would be a disaster for American youths.

"If you allow this for even this compassionate use, it gives the kids the excuse that it is not harmful, that it is medicine," says DeForest Rathbone of the National Institute of Citizen Antidrug Policy, a parents' group in Great Falls, Va. "It is harmful, and we just can't do that as a government policy."

State laws unaffected

Chuck Thomas of the Marijuana Policy Project in Washington says since 1996, eight states have adopted laws permitting the medical use of marijuana, and more are on the way. "Even if the Supreme Court issues an unfavorable ruling, it will not overturn any of these state medical-marijuana laws," he says.

Mr. Thomas says because 99 percent of all arrests for marijuana possession and use are made by local or state police - rather than federal agents - state laws play a much bigger role in the medical-marijuana issue than a federal statute.

"The federal government doesn't have the resources or the mandate to go into the states and pick up the slack," he says.

"There are still going to be tens of thousands of patients in these states growing and using their own marijuana at home - and little chance of federal agents finding out about it."

The heart of the case before the Supreme Court involves a challenge by the US Justice Department to Proposition 215 in California, the 1996 referendum that opened the door for medical-marijuana use in that state.

After the measure passed, several "cannabis clubs" opened to help distribute marijuana to patients seeking it for medical reasons. Prosecutors asked a federal judge to shut down the clubs on grounds that they were violating the federal Controlled Substance Act, which outlaws growing, selling, or consuming marijuana anywhere in the US.

The prosecutors targeted six clubs, including the Oakland Cannabis Buyers' Cooperative in Oakland, Calif.

The judge in the case, US District Judge Charles Breyer, brother of US Supreme Court Justice Stephen Breyer, issued an injunction, shutting down the cannabis clubs. But the federal appeals court reversed, ruling that US drug laws didn't apply when the defendants could prove the drug activity in question was a medical necessity.

In a brief to the Supreme Court, the US Solicitor General's Office says Congress and other top government officials carefully considered whether to enact a total or partial ban of marijuana, and opted to outlaw its use entirely.

"A district court may not override those determinations by reweighing the scientific and medical data and social policies ... and concluding that the public interest supports the illegal distribution of marijuana," the brief says.

A legitimate purpose?

Lawyers for the Oakland Cannabis Buyers' Cooperative counter that the congressional ban on marijuana is not a specific finding that "cannabis has no medical use, or that it can never serve any legitimate medical purpose."

The government has recognized medical-necessity exemptions in the past, they say.

The lawyers add that under state law, patients enjoy basic rights that Congress may not take away. "The people have recognized a fundamental liberty interest in allowing access to cannabis to alleviate illness," the brief says. It adds: "If the court were to adopt the government's position, such an interpretation would deprive patients of their fundamental liberties."

(c) Copyright 2001. The Christian Science Monitor

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