Pubdate: Thu, 29 Mar 2001
Source: Hartford Courant (CT)
Copyright: 2001 The Hartford Courant
Contact:  285 Broad St., Hartford, CT 06115
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Author: John A. Macdonald

MARIJUANA: MEDICINE OF LAST RESORT FOR VERY ILL

WASHINGTON - Angel McClary, a 35-year-old Oakland, Calif., paralegal, has a 
brain tumor, anorexia and frequent nausea. When traditional medications 
proved ineffective, McClary's doctor recommended marijuana.

"It's saved my life," says McClary, who has been using marijuana since 
1998. She has gotten out of a wheelchair, gained some weight and been able 
to get the nausea partially under control.

Still, McClary has a problem: The federal government does not think she 
should have marijuana and has gone to the Supreme Court to enforce its 
opinion. On Wednesday, the court will hear arguments that could determine 
how easy - or difficult - it will be for McClary, as well as other 
residents of California and at least eight other states, to obtain 
marijuana legally for medical reasons.

The case, which has already rekindled the debate over medicinal uses of 
marijuana, also could affect states like Connecticut that are considering 
proposals to ease or lift restrictions on marijuana use for medical 
conditions that may not respond to conventional treatment.

"The upcoming Supreme Court decision will be the most important court 
ruling with regard to medical marijuana in U.S. history," said Chuck 
Thomas, communications director of the Marijuana Policy Project, which 
favors allowing people to cultivate small amounts of marijuana for their 
personal use.

R. Keith Stroup, executive director of the National Organization to Reform 
Marijuana Laws, said: "Surely federal law must recognize the right of 
seriously ill patients to use marijuana, if recommended by a physician, 
when other medications are ineffective."

On the other side, Robert L. Maginnis, vice president of the conservative 
Family Research Council, contends the harmful effects of marijuana outweigh 
any benefits. "Permitting `medicalization' of crude marijuana would result 
in many negative consequences that the federal drug laws are designed to 
prevent," he said.

Not-for-profit marijuana cooperatives sprang up in California, especially 
around the San Francisco-Oakland area, after voters in 1996 approved 
Proposition 215, legalizing marijuana when a doctor found it medically 
necessary for a seriously ill patient. At their peak, the cooperatives are 
believed to have had tens of thousands of members. Some have closed in 
recent years, but many remain in operation pending the high court's 
decision, which is expected by early July.

Purchasers say the cooperatives provide a safe and affordable place to buy 
good-quality marijuana.

In 1998, however, the Justice Department filed a civil action in federal 
district court to prevent the popular Oakland Cannabis Buyers' Cooperative 
from continuing to operate. Government lawyers argued that Proposition 215 
conflicted with the 1970 federal Controlled Substances Act, which forbids 
anyone from distributing or dispensing marijuana.

Over the next two years, federal district and appeals courts in California 
issued several confusing rulings that the Supreme Court will attempt to 
sort out.

Initially, District Judge Charles R. Breyer of San Francisco granted the 
government's request for an injunction to close the Oakland cooperative. 
But the U.S. 9th Circuit Court of Appeals later said that Breyer should 
have modified his injunction to consider medical necessity and the "strong 
public interest" in the availability of marijuana for patients whose 
doctors think they need it.

As a result, Breyer last summer issued a new order saying the cooperative 
could continue supplying marijuana to those who have a "serious medical 
condition" and could suffer imminent harm without it. The government moved 
a second time, persuading the Supreme Court to stay Breyer's new ruling and 
to consider the legality of Proposition 215. Breyer's brother, Supreme 
Court Justice Stephen G. Breyer, has recused himself from the case.

The central legal question is Congress' intent in passing the Controlled 
Substances Act. Government lawyers argue that Congress "specified certain 
substances to be included" in a controlled category and that marijuana has 
been in that category from the start.

Lawyers for the Oakland cooperative contend that Proposition 215 is based 
on the principle of medical necessity, which they argue "is one of the 
oldest and most well-entrenched common law defenses in Anglo-American 
jurisprudence," going back to 13th century England.

While reluctant to predict how the court will rule, lawyers involved in the 
case said three outcomes seem possible: The high court could uphold the 
medical necessity argument and allow cooperatives in California and other 
states to resume operations. The justices could invalidate Proposition 215, 
forcing cooperatives in California and elsewhere to close permanently. Or 
the justices could decide they prematurely agreed to take up the case and 
send it back to California for additional argument.

Some lawyers doubt the current conservative Supreme Court will accept the 
medical argument because it could be seen as undercutting the nation's war 
on drugs. In any case, they said that many who need it will continue to get 
marijuana, either from the street or from family or friends, but purchases 
will be more difficult and more dangerous and buyers could be subject to 
prosecution.

Many are waiting to see if the high court's opinion applies only to 
California or to the other states that have permitted medical uses of 
marijuana. Those states are Alaska, Arizona, Colorado, Hawaii, Oregon, 
Maine, Nevada and Washington.

Lawmakers elsewhere will be paying attention, too. Since 1996, eight of the 
nine states that have adopted policies similar to California's have been in 
the West. This year, the focus has shifted to the East, where legislators 
in five states - Connecticut, Rhode Island, Massachusetts, Vermont and 
Maryland - have introduced proposals that could lead to legalizing 
marijuana for medical use. New Mexico and Iowa also are considering similar 
proposals.

In Connecticut, current law allows cancer and glaucoma patients to possess 
marijuana obtained from a doctor's prescription. But there is no place to 
fill such prescriptions, and physicians who prescribe marijuana may be 
barred from participating in Medicaid, the federal-state health program for 
the poor. A bill under consideration in the legislature would provide for 
research into ways of legally distributing medical marijuana in the state.

In the background of the legal and legislative maneuvering is the question 
of how much good marijuana really does for those who are ill. The Institute 
of Medicine, an arm of the National Academy of Sciences, has tried to 
straddle the issue, saying that marijuana use has potential as a medicine 
but the good effects are undermined because patients must inhale harmful smoke.
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MAP posted-by: Larry Stevens