Marijuana debate before Supreme Court

Federal drug laws have blocked use in medical situations

March 29, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON - The debate over the medical use of marijuana made its way to the Supreme Court yesterday as lawyers squared off over a California law that lets seriously ill patients use the drug for therapy and pain relief after other remedies have failed.

A lawyer for the federal government argued that the California measure, which voters approved in 1996, conflicts with federal drug laws. Those laws ban the use or distribution of marijuana and make no exceptions for medical purposes.

But a lawyer for an Oakland "cannabis club" that seeks to sell marijuana to patients disagreed. He argued that the legal system has long allowed people to avoid criminal prosecution on the basis of a compelling necessity, and that the club's customers have a medical necessity in using marijuana.

"It's a classic illustration of the `choice of evils' defense," lawyer Gerald F. Uelmen told the court. "This defense should be available to any patient in the state."

In questioning each side, the justices sent mixed signals of their views. Justice Ruth Bader Ginsburg expressed sympathy for sick patients who use marijuana, noting that for some, the drug provides the only relief from intense suffering and nausea.

Ginsburg also said she believed that doctors had been recommending marijuana to some patients for years but that the government began to crack down only after the California proposition was approved five years ago.

But other justices asked Uelmen to explain what circumstances would justify the use of marijuana. What about to relieve headaches or stomachaches? asked Chief Justice William H. Rehnquist. And why, Justice Antonin Scalia asked, should sellers of marijuana be allowed to escape prosecution because their buyers had a medical necessity?

"That's a vast expansion beyond any necessity defense I've ever heard of," Scalia said

The court's ruling, expected by early summer, will have enormous consequences for the medical use of marijuana. Eight other states - Maryland is not among them - have passed laws similar to California's, and if the court rules against the Oakland club, those laws will essentially become void.

Supporters of medical marijuana say it not only relieves the pain of patients undergoing radiation and other therapy but also saves lives. For AIDS patients in particular, they say, marijuana stimulates hunger and suppresses nausea, allowing patients to gain the strength needed to prevent illnesses. They also say marijuana helps in treatment of glaucoma.

An attorney for the government, Barbara Underwood, told the court that the Food and Drug Administration had considered the medical benefits of marijuana and concluded that none existed.

The case began three years ago, when the federal government moved to shut down several cannabis clubs formed after the California proposition passed. Instead of bringing criminal charges, the government asked a federal judge to order the clubs to close.

The judge did so, declaring that he had no choice under federal drug laws. But after an appeals court reversed his decision, he created an exception for seriously ill patients thought to be at risk of imminent harm and for whom there is no alternative remedy. The federal government appealed that ruling.

In another case before the court yesterday, a lawyer for several large publishers urged the justices to reverse a lower-court ruling that newspapers need permission from free-lance writers before selling their work to electronic data bases.

The publishers say that if the lower-court decision is upheld, they would have to remove more than 100,000 free-lance articles from databases to protect themselves from liability. And that has led some prominent scholars to worry that a vital source of historical research could be lost.

Among the historians who support the publishers' case are Doris Kearns Goodwin, Ken Burns and David McCullough.

Such authors as James Gleick and Robert K. Massie have sided with the six free-lance writers who sued. These authors argue that writers should be paid any time their work is reproduced.

The arguments yesterday focused mostly on a provision of copyright law that allows publishers to reproduce articles without the writers' consent, so long as they do so in a "revision" of the original publication.

The justices wanted to know whether databases such as Lexis-Nexis amount to a revision of newspapers and magazines or whether they more resemble anthologies, in which case the free-lancers would prevail. Though both sides tried to answer the question, neither appeared able to satisfy the court.

But the broader policy consequences of the case also surfaced. Noting the concerns of the historians, Justice Steven G. Breyer said he was worried about wiping out the history of the 20th century, even though publishers have threatened to remove only free-lance articles from databases if they lost the case.

Breyer's point was quickly picked up by Laurence H. Tribe, the lawyer for the publishers, which include the New York Times, Newsday and Time Inc.

"If we read the law the way they propose we read it," Tribe argued, "we're going to have serious problems with our kids doing their homework and professors of history finding out what happened in the middle of the 20th century."

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