Pubdate: Thu, 29 Mar 2001
Source: Washington Post (DC)
Copyright: 2001 The Washington Post Company
Contact:  1150 15th Street Northwest, Washington, DC 20071
Feedback: http://washingtonpost.com/wp-srv/edit/letters/letterform.htm
Website: http://www.washingtonpost.com/
Author: Charles Lane, Washington Post Staff Writer

CASE PITS 'MEDICAL MARIJUANA' AGAINST U.S. DRUG WAR

Lawyer For Calif. Group Urges Justices To Allow Sick People To Use 
Substance To Alleviate Symptoms

An attorney for an Oakland, Calif., marijuana cooperative asked the Supreme 
Court yesterday to let sick people obtain marijuana to help alleviate their 
symptoms, in a case that pits the movement for state "medical marijuana" 
laws against the federal war on drugs.

The court should recognize a "medical necessity" exception to the federal 
prohibition on the possession and distribution of marijuana, said Gerald F. 
Uelmen, who represents the Oakland Cannabis Buyers' Cooperative, one of 
several "cannabis clubs" that sprang up after California voters approved a 
referendum in 1996 permitting doctor-approved marijuana use.

In political terms, a victory for the Oakland cooperative would be a boost 
to the medical marijuana movement, which has persuaded voters in eight 
states to approve referendums similar to California's. But a ruling in 
favor of the federal government could be a significant setback to the 
movement by creating doubt about the ability of states to deviate from 
federal drug law.

Despite strong support for medical marijuana laws in certain states, 
national politicians have opposed the laws rather than deviate from the 
zero-tolerance drug policy the public generally demands.

Commenting on the case yesterday, President Bush's spokesman, Ari 
Fleischer, said that Bush is personally opposed to medical marijuana, 
despite remarks he made during last year's campaign that suggested some 
sympathy for the states' right to adopt a different policy.

Bush's view echoes that of the Clinton administration, which had argued in 
court that the California referendum promotes "disrespect" for drug laws. 
The Clinton Justice Department sued the Oakland cooperative, and a federal 
court ordered it closed in 1998.

Acting Solicitor General Barbara Underwood, a holdover from the Clinton 
administration, urged the justices yesterday not to send a signal that 
would "undermine the authority of [Congress] to protect the public from 
hazardous drugs." She argued that there is "no currently accepted medical 
use" for marijuana and that permitting courts and juries to acquit 
marijuana defendants based on "medical necessity" would create a massive 
loophole in federal drug control laws.

Her hearing seemed to be receptive. Despite its past support for state 
prerogatives, the Supreme Court has already leaned toward the federal 
government's assertion of authority against the California cannabis clubs.

In August, after a lower federal appeals court had permitted the Oakland 
cooperative to reopen, a majority of the Supreme Court granted the Justice 
Department's request to keep the cooperative closed until the justices had 
a chance to decide the issue.

Several justices expressed skepticism yesterday about what they called the 
"sweeping" nature of the Oakland group's proposed "medical necessity" rule.

"I would have thought . . . that the [appeals court] erred at the point 
that it created this kind of blanket defense," Justice Sandra Day O'Connor 
said.

"Every respondent who wishes to take advantage of it is going to have to 
show that they are suffering from a serious medical condition . . . and 
that they have no reasonable alternative," Uelmen responded.

However, some justices also seemed concerned that, by seeking a court order 
to shut the cooperative rather than pressing criminal charges, the Justice 
Department had effectively used a federal judge to sidestep what might have 
been a politically unpopular prosecution in California.

"Isn't the real concern behind this that with the passage of the California 
referendum and the popularity . . . 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 Underwood.

The government's dispute with the cooperative "is ideally suited for 
resolution in a civil litigation," Underwood told the court.

Seemingly conceding that their chances of victory at the Supreme Court are 
slim, medical marijuana backers have launched a major public relations 
campaign to convince potential supporters across the country that the court 
lacks the power to invalidate state medical marijuana laws.

Even if cannabis clubs were put out of business, people in states that 
permit medical marijuana could still grow their own, they say, and it would 
be up to the federal government to find and prosecute them.

The case is U.S. v. Oakland Cannabis Buyers' Cooperative, No. 00-151.

Separately yesterday, the justices heard arguments in a case that will 
decide whether the New York Times and other major publishers may freely 
redistribute past articles by freelance authors to online databases such as 
Lexis-Nexis. The Washington Post Co. joined a friend-of-the-court brief in 
support of the publishers.

The writers say that they retain rights to the work under federal copyright 
law and that it is unfair for huge media corporations not to share the 
profits that come from republishing the articles on the databases.

The publishers say that, as reproduced by the databases, the articles are 
"revisions" over which the law grants them full control. Publishers say 
that they might have to purge thousands of articles from the databases 
rather than face what the writers have predicted would be "massive 
liability claims."

The case is New York Times v. Tasini, No. 00-201.
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