Pubdate: Thu, 18 Sep 2003
Source: San Francisco Chronicle (CA)
Copyright: 2003 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko

MEDICAL POT PITCH: RIGHT TO EASE PAIN

Court Hears New Case For Legal Marijuana

Northern California medical marijuana clubs made another bid for legal 
status Wednesday, telling a federal appeals court that the use of a drug to 
ease severe pain is a basic right that should override federal narcotics laws.

The case offers the only opportunity to decide "whether Americans have a 
fundamental constitutional right to relieve their pain," Gerald Uelmen, a 
Santa Clara University law professor, told a panel of the Ninth U.S. 
Circuit Court of Appeals in San Francisco.

The three-judge panel -- which has already seen one of its rulings in favor 
of the marijuana clubs overturned by the U.S. Supreme Court -- seemed 
sympathetic to Uelmen's position but dubious about his legal argument.

Judge Stephen Reinhardt noted that the same constitutional right -- to be 
free of debilitating pain -- was asserted in an earlier suit that 
challenged a state law against doctor-assisted suicide. The appeals court, 
in a ruling by Reinhardt, agreed that such a right existed in 1996 but was 
overruled by the Supreme Court in 1997.

"The Supreme Court did not seem to understand that argument," Reinhardt 
said, with a rueful smile.

A different panel of the appeals court is now considering a Bush 
administration challenge to an Oregon law allowing doctor-assisted suicide.

Uelmen represents a Santa Cruz cooperative that is seeking to recover the 
marijuana seized by federal agents in a raid last September. Marijuana 
clubs in Oakland, Fairfax and Ukiah are appealing injunctions obtained by 
federal authorities that prohibit them from distributing marijuana to 
patients. About three dozen similar organizations have sprung up statewide 
since California voters approved a medical marijuana initiative in 1996.

The appeals court ruled in 2000 that the federal ban on marijuana did not 
prohibit distribution of the drug to severely ill patients whose doctors 
had recommended it, and who were not helped by federally approved 
medicines. The Supreme Court overturned that ruling in 2001, spurring a 
series of federal raids and prosecutions of pot suppliers in California.

Wednesday's hearing involved constitutional challenges to federal 
enforcement actions, which the Supreme Court did not address in 2001. One 
was Uelmen's claim that the right to life and liberty under the 
Constitution includes a right to use a substance that offers relief from 
extreme pain or from disabling effects of conventional treatment for cancer 
or AIDS.

"If a dying cancer patient is able to live one more day without vomiting . 
. . what interest does the federal government have in sending armed agents 
to his bedside?" Uelmen asked.

Justice Department lawyer Mark Quinlivan replied that the courts have 
upheld Congress' authority to classify marijuana as a substance with no 
recognized medical use. Quinlivan said the appeals court rejected a similar 
constitutional claim years ago by a terminally ill cancer patient who 
believed he could be cured by Laetrile, an apricot pit derivative that is 
unapproved for medical use and banned in interstate commerce.

"There is a (constitutional) right to treatment but there is no right to 
unapproved drugs to relieve pain," Quinlivan said.

The clubs also argued that Congress' power to regulate interstate commerce 
doesn't cover marijuana that is grown and distributed entirely in 
California. But Quinlivan said the courts have upheld Congress' conclusion 
that homegrown marijuana contributes to interstate drug trafficking.
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