By Linda Greenhouse Source: New York Times Although the Supreme Court is usually solicitous of states' rights, that attitude appeared today to stop well short of endorsing the medical use of marijuana, which California voters authorized in a 1996 referendum despite a federal law that considers marijuana to have "no currently accepted medical use." Two lower federal courts in California have held that a marijuana distribution center in Oakland could invoke "medical necessity" as a defense against the federal government's effort to get an injunction to stop the operation of the "cannabis clubs." The clubs sprang up around the state after passage of California's Proposition 215, entitled the Compassionate Use Act. Hearing the government's appeal, the justices were openly skeptical that a defense of "medical necessity" could be properly recognized. When Gerald F. Uelmen, the lawyer for the Oakland Cannabis Buyers' Cooperative, said the lower courts had recognized only a "limited exception" for people who could show that they had a serious need for marijuana and lacked any reasonable alternative, Justice Anthony M. Kennedy interjected, "It doesn't sound limited at all." Justice Kennedy said the lower courts had effectively engaged in a "huge rewriting" of the federal law that places marijuana within schedule I of controlled substances, those with no accepted medical use. The federal government responded to the adoption of Proposition 215 not with criminal prosecutions of marijuana providers and users, but by seeking a federal court injunction to stop the cannabis clubs from distributing the drug. As a legal matter, the argument today was not directly about the validity of Proposition 215 itself but about what discretion the lower courts had in responding to the request for the injunction. Given this narrow focus, the Supreme Court is unlikely to issue a definitive ruling on the future of the growing number of medical marijuana initiatives, which have now been adopted by nine states. The medical use of marijuana by individual patients and doctors, as opposed to distribution through the pharmacy- like cooperatives, is not directly at issue. Several justices today questioned the government's approach, suggesting that its reasons for pursuing a civil injunction rather than criminal prosecution were not only tactical but cynical, perhaps even a misuse of the federal courts' authority to issue injunctions. "Isn't the real concern behind this that with the passage of the California proposition and the popularity within the California population that that necessarily entails, it will be very, very difficult for the government ever to get a criminal conviction in a jury trial?" Justice David H. Souter asked Barbara D. Underwood, the acting solicitor general. Ms. Underwood said that because in the government's view "there simply is no medical necessity defense at all," it was more efficient to "get it resolved systemically in a civil proceeding that simply presents that legal question" by means of an injunction rather than in a series of criminal prosecutions. California itself was not a party to the case, but the California attorney general, Bill Lockyer, filed a brief on behalf of the Oakland cooperative. "The federal government threatens to cross the line of state sovereignty and interfere with a traditional state right," the attorney general said. Mr. Lockyer said states had a "traditional right to regulate for the health and welfare of their citizens." The California Medical Association also supported the Oakland group, as did civil liberties and drug policy organizations and a group of local sheriffs and officials from other states that have adopted medical marijuana initiatives. The briefs contain considerable information about current practices of using marijuana to combat glaucoma, the nausea of chemotherapy, and the wasting syndrome of AIDS. There is also debate in the briefs over whether a legal drug called Marinol, a synthetic version of the active ingredient in marijuana, offers the relief that some patients find in smoking marijuana. Justice Ruth Bader Ginsburg, who endured a course of chemotherapy last year as treatment for colon cancer, made it clear that she had read the briefs with care and interest. Addressing Ms. Underwood, the government's lawyer, Justice Ginsburg referred to one description of one cancer patient "who was constantly vomiting, and the only thing that calmed him down" was marijuana. "That is not an uncommon experience," she said, asking: "Am I wrong in thinking that there has been quite a bit of this going on in the medical profession?" Ms. Underwood replied, "I don't know how much of it has been going on." She added that although federal agencies were not yet persuaded of the benefits of medical marijuana, they were continuing to study it to determine "whether it has the effect that's described." The medical-necessity defense recognized by Judge Charles Breyer of Federal District Court in San Francisco is narrowly defined. It applies only to those who suffer from a "serious medical condition"; who will "suffer imminent harm" without access to marijuana; whose condition or symptoms will be eased by marijuana; and who had "no reasonable legal alternative" to the drug. Because Judge Breyer is the younger brother of Justice Stephen G. Breyer, Justice Breyer has recused himself from the case, United States v. Oakland Cannabis Buyers' Cooperative, No. 00-151, and only eight justices heard the argument this morning. Complete Title: Supreme Court Hears U.S. Argue Against Medical Marijuana Source: New York Times (NY) Author: Linda Greenhouse Published: March 29, 2001 Fax: (212) 556-3622 Copyright: 2001 The New York Times Company Address: 229 West 43rd Street, New York, NY 10036 Contact: letters@nytimes.com Website: http://www.nytimes.com/ Forum: http://forums.nytimes.com/comment/ Related Articles & Web Sites: Oakland Cannabis Buyers' Cooperative http://www.rxcbc.org/ USA V. OCBC & Jeffrey Jones: http://www.druglibrary.org/ocbc/