March 29, 2001
By Joan Biskupic
WASHINGTON -- The Supreme Court appeared unconvinced Wednesday by arguments that seriously ill patients should be able to use marijuana to ease their suffering without fear of violating federal drug law.
During a vigorous hour-long session, some justices seemed sympathetic to the plight of patients who say they have no alternatives. But a majority did not appear ready to effectively override federal law by allowing a ''medical necessity'' defense for marijuana use.
The case before the court rose from California, where voters in 1996 adopted a proposition to allow medical marijuana. The U.S. government responded by moving to block the state law's effect, leading to one of the high court's most-watched cases this term.
The case pits public health groups and civil libertarians against anti-drug forces and parents' organizations. It measures the nation's ''war on drugs'' against efforts to find alternative therapies for cancer, AIDS, multiple sclerosis and other complex illnesses.
Besides California, eight other states have laws allowing the medical use of marijuana. The federal government says that although those initiatives may exempt marijuana use from state prosecution, federal anti-drug laws still apply.
Acting U.S. Solicitor General Barbara Underwood urged the court to reject arguments for a ''medical necessity'' defense that would spare patients and their marijuana providers from federal prosecution or civil lawsuits. She said that in outlawing marijuana, Congress rejected the idea that the drug has any benefits.
''There is currently no accepted use for the drug,'' she said, adding that it also is highly likely to be abused. She asked the justices to reverse a ruling by the U.S. Court of Appeals for the 9th Circuit that there could be a common-law ''medical necessity'' defense to federal drug statutes. Reversing an order that shut down cannabis clubs, the appeals court cited a ''public interest in the availability of the doctor-prescribed treatment (to) relieve the pain and suffering of a large group of persons.''
Lawyer Gerald Uelmen, representing the Oakland Cannabis Buyers' Co-op, argued that the court should adopt that rationale. Uelmen said people facing ''imminent harm'' should be able to take advantage of marijuana's benefits. The drug is known for easing the nausea that comes with chemotherapy, stimulating the appetite of AIDS patients and relieving the misery of other conditions such as multiple sclerosis.
''The (medical necessity) defense should be available to any patient in any state,'' Uelmen said, regardless of whether a state has legalized marijuana.
''It's a sweeping proposition,'' declared Justice Anthony Kennedy. Justice Sandra Day O'Connor was similarly skeptical of having a ''blanket medical necessity defense'' that could supersede federal law that bans the possession or distribution of marijuana.
Chief Justice William Rehnquist asked how truly desperate patients might be screened from those who simply want to use marijuana. He was sympathetic to the government's argument that if Congress had believed there was a valid medical use, it would not have included it under the strictest controlled-substances laws. Other justices focused on the needs of seriously ill people for whom conventional treatments fail.
''Should we assume there are no such people?'' Justice John Paul Stevens asked. Underwood said yes.
Justice Ruth Bader Ginsburg, a recent cancer survivor and chemotherapy patient, asked about evidence in court filings that the drug has been used to relieve patients' vomiting and other conditions. ''Am I wrong in thinking there has been quite a bit of this going on in the medical profession?''
Underwood said there are alternatives to the drug.
Justice David Souter focused on the government's effort to undermine California's Proposition 215 by seeking an injunction in federal court to block cannabis clubs from distributing marijuana, rather than by prosecuting users or providers. Souter questioned whether the government did that because it could never win a prosecution in a jury trial. He cited the popularity of California's medical marijuana law.
Underwood said the Justice Department wanted to resolve the dispute with a single move, particularly because it adamantly disputes the medicinal claims. In this case, a district court judge rejected the clubs' ''necessity'' defense but then was overturned by the 9th Circuit. (The district court judge was Charles Breyer, brother of Supreme Court Justice Stephen Breyer. Justice Breyer recused himself from Wednesday's case.)
The tension over the case was evident in the many briefs filed here. The National Organization for Reform of Marijuana Laws told the justices that ''this case is not about a right to get 'stoned,' . . . (but) the right of personal medical choices of the chronically and terminally ill.'' On the other side, the Family Research Council said legalizing medical marijuana would change ''attitudes toward the perceived dangerousness of illicit drug use.''
Also Wednesday, the justices considered whether U.S. copyright law requires publishers to get permission from freelance writers before putting the writers' stories from print editions into electronic databases.
The New York Times,
backed by media groups including Gannett Co., which publishes USA TODAY,
says the electronic versions made available to commercial services are
successors to microfilm and microfiche. The Times says they are not new
uses of the work that infringe on an author's copyright. Freelancers say
the electronic versions are new uses of their work.