By Bart Jansen, Portland Press Herald Writer Source: Press Herald U.S. Supreme Court justices questioned Wednesday whether marijuana is the last resort for seriously ill patients, as advocates have asserted in California, Maine and other states allowing for its medicinal use. Even if smoking marijuana is a medical necessity for AIDS and cancer patients to overcome nausea and weight loss, several justices suggested that Congress explicitly banned doctors from prescribing it in a 1970 law for lack of proof of medical benefit. The high court's decision in the case is significant because of the conflict between federal law, which bans the sale of the drug, and referendums in Maine and eight other states that allow for the medicinal use of marijuana. "It doesn't sound limited at all," Justice Anthony Kennedy said of non-medical people distributing a federally regulated drug. "That's a huge change." The California case that the justices are specifically looking at involves the Oakland Cannabis Buyers' Cooperative, which distributed marijuana to ill patients who received a doctor's recommendation. The case has nationwide implications because nine states, including Maine, have similar laws that allow seriously ill patients to use marijuana to remedy their symptoms from harsh AIDS medications, chemotherapy or spasticity of multiple sclerosis. In addition to California and Maine, the other states allowing for the medical use of marijuana are: Alaska, Arizona, Hawaii, Oregon, Washington, Nevada and Colorado. Cumberland County Sheriff Mark Dion and state Sen. Anne Rand, D-Portland, filed a joint legal brief in the California case before the Supreme Court, voicing their support for the medical use of marijuana. The legal hitch in the state laws has been how to distribute the drug to patients too sick or unable to grow their own plants. While the California law and the 1999 Maine referendum allow patients to possess marijuana for their own use, distribution remains federally prohibited. Maine officials are still grappling with how to allow distribution, forcing patients to buy the drug on the black market. In California, federal prosecutors asked a U.S. District Court to close the club under a civil order, but the 9th Circuit Court of Appeals overturned that decision, saying the government had not effectively disputed the claim that the drug was the "the only effective treatment for a large group of seriously ill individuals." On Wednesday, Justice Stephen Breyer did not participate in the case because his brother, Charles Breyer, was the District Court judge in the case. The Supreme Court could act broadly in its decision, which is expected in June, and prohibit drug-distribution clubs. Or it could allow the 9th Circuit's decision to stand, setting rules for how clubs could operate. Several justices seemed to side with federal lawyers, who argued that the 1970 Controlled Substances Act prohibited marijuana sales even with a doctor's prescription. "There is no medically necessary defense at all," said Acting Solicitor General Barbara Underwood. Chief Justice William Rehnquist asked Gerald Uelman, a California lawyer representing the marijuana club, what standards would cover the distribution of drugs that are otherwise illegal. Uelman said the illness must be life-threatening, such as AIDS, or involve imminent harm, such as starvation from nausea, from drugs. "Stomachache?" asked Justice Antonin Scalia, saying that "harm" was a broad term. "No," Uelman said. "I think we're talking about much more serious harm." Hundreds of years of common law allow criminal defendants to argue that a drug was needed for medical necessity, as a last resort for the seriously ill, Uelman said. He argued that his theory would apply in all states, not just ones where voters approved use of medicinal marijuana. "By letting someone die, you are violating the law," Uelman said. But Rehnquist suggested that Congress overruled the common law by specifically outlawing marijuana. Several justices expressed reservations about allowing a patient to roll the dice with a doctor to try drugs that Congress prohibited or that the Food and Drug Administration hadn't confirmed as effective. Justices focused many of their questions on how the law would stop marijuana clubs. With a choice of pressing criminal charges or asking a judge for a civil injunction, prosecutors in California pursued a civil case that avoided a jury trial. Prison sentences are possible for contempt for violating an injunction, but prosecutors sought only to padlock the clubs, Underwood said. "This is just a nuisance action in federal court," Justice Anthony Kennedy said. Justice Davis Souter voiced the concern that jurors in a state where a majority of voters approved the use of medicinal marijuana might be reluctant to convict a defendant accused of distributing marijuana to sympathetic characters such as the seriously ill. But Scalia ridiculed the notion that prosecutors would avoid jury trials. "California juries only enforce the laws they like, is that it?" he asked to laughter. "If a U.S. attorney is trying to avoid a jury, he ought to be replaced," he said later. Source: Portland Press Herald (ME) Author: Bart Jansen, Portland Press Herald Writer Published: Thursday, March 29, 2001 Copyright: 2001 Blethen Maine Newspapers Inc. Contact: letters@pressherald.com Website: http://www.portland.com/ Related Articles & Web Site: Mainers For Medical Rights http://www.mainers.org/ Oakland Cannabis Buyers' Cooperative http://www.rxcbc.org/