Supreme Court accepts medical-marijuana issue

WASHINGTON - The Supreme Court entered the debate over medical marijuana Monday, agreeing to decide whether the drug can be provided to patients out of ''medical necessity'' even though federal law makes its distribution a crime.

The justices said they will hear the Clinton administration's effort to bar a California group from providing the drug to seriously ill patients for pain and nausea relief.

A lower court decision allowing the Oakland Cannabis Buyers' Cooperative to distribute the drug ''threatens the government's ability to enforce the federal drug laws,'' government lawyers said.

But the California group says that for some patients, marijuana is ''the only medicine that has proven effective in relieving their conditions or symptoms.''

The group's lawyer, Annette P. Carnegie, said Monday the federal Controlled Substances Act does not prohibit the distribution of marijuana for medical reasons.

''Those choices, we believe, are best made by physicians and not by the government,'' she said. Marijuana has been effective in relieving nausea in cancer patients undergoing chemotherapy, weight loss in HIV-positive patients and in reducing pain, she said.

Eight states in addition to California have medical-marijuana laws in place or approved by voters: Alaska, Arizona, Hawaii, Maine, Oregon, Washington, Nevada and Colorado. Residents of Washington, D.C., voted in 1998 to allow the medical use of marijuana, but Congress blocked the measure from becoming law.

Justice Department lawyers said Congress has decided that marijuana has ''no currently accepted medical use.''

In August, the Supreme Court barred the California organization from distributing marijuana while the government pursued its appeal.

Justice Stephen G. Breyer did not participate in the case. His brother, Charles, a federal trial judge in San Francisco, previously barred distribution of marijuana only to have his decision reversed by a federal appeals court.

California's law, passed by the voters in 1996, authorizes the possession and use of marijuana for medical purposes upon a doctor's recommendation.

The Oakland group said its goal is ''to provide seriously ill patients with safe access to necessary medicine so that these individuals do not have to resort to the streets.''

But the federal Controlled Substances Act includes marijuana among the drugs whose manufacture and distribution are illegal.

In January 1998, the federal government filed a lawsuit against the Oakland club, asking a judge to ban it from providing marijuana.

Judge Charles Breyer issued a preliminary order imposing such a ban. But the 9th U.S. Circuit Court of Appeals reversed, saying the government did not disprove the club's evidence that the drug was ''the only effective treatment for a large group of seriously ill individuals.''

Last May, Breyer issued a new order allowing the Oakland group to provide marijuana to patients who needed it.

In the appeal granted Supreme Court review, Justice Department lawyers said the appeals court ''seriously erred'' in deciding the federal law allowed a medical-necessity defense.

The Oakland club's lawyers said ''the voters of California have spoken'' in approving the medical-marijuana measure. Congress has not explicitly barred a medical necessity defense against the federal anti-drug law, the lawyers added.

The Supreme Court also agreed Monday to hear an appeal by a condemned killer from Texas whose lawyers say he is mentally retarded. The court said it will use the case of Johnny Paul Penry to clarify how much opportunity jurors in death-penalty cases must have to consider the defendant's mental capacity.

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On the Net:

For the appeals court ruling in U.S. v. Oakland Cannabis Buyers' Cooperative: http://www.uscourts.gov/links.html and click on 9th Circuit.