Bush attorney likens Calif. pot laws to civil right standoffs

SAN FRANCISCO -- California and other states that want to make marijuana available to sick or dying patients are flouting federal drug laws in much the same way that Southern states defied national civil rights laws, a senior Bush administration lawyer said.

California is ground zero in a long tug of war with the federal government over the medical value of marijuana and the power of state governments and voters to make exceptions for people who may benefit from the illegal drug.

Five major federal lawsuits involve those who grow, use or recommend marijuana for medical use in California.

States' rights

The Bush administration has asked the Supreme Court to settle the latest fight by agreeing that Washington has the power to revoke medical licenses of doctors who invoke state laws and recommend pot for their patients.

States cannot choose when to abide by federal law and when not to, Justice Department lawyer Mark Quinlivan said Saturday.

"You cannot cherry-pick," said Quinlivan, the top federal trial lawyer in three of the pending cases and a panelist at an American Bar Association discussion of medical marijuana.

California voters passed Proposition 215 in 1996, legalizing marijuana for medical use. Eight other states followed suit.

Federal law recognizes no medical purpose for the drug and bans its private production, sale or use.

"There is a basic question of what power does California have," said lawyer Gerald Uelman, Quinlivan's opponent in two cases. The federal law regulating drugs "is not a federal takeover of the medical system" or the duty of doctors to help the very ill, Uelman said.

Objections

Uelman and a California attorney general's office lawyer objected to the civil rights analogy and the notion that California is asserting the same kind of states' rights argument that Alabama used to try to avoid desegregating its schools.

When government agents shut down marijuana growers who serve sick people, it is "not acting with the same degree of moral propriety as it did to end civil rights abuses," said Taylor Carey, a California special assistant attorney general who wrote a brief backing medical marijuana.

California's fight with Washington has extended through the Democratic Clinton administration and the Republican Bush administration. The Supreme Court ruled against an Oakland marijuana distribution club two years ago, finding the federal drug law allows no exception for people to use pot to ease pain from cancer, AIDS or other illnesses.

The high court has not yet said whether it will hear the latest California case. The Bush administration wants the court to strike down a lower court ruling blocking punishment or investigation of physicians who tell patients they may be helped by the drug.

The administration's appeal, filed last month, argued that the ruling of the San Francisco-based 9th U.S. Circuit Court of Appeals keeps the U.S. Drug Enforcement Administration from protecting the public.

The ruling licenses doctors to treat patients with illegal drugs, and physicians who urge patients to use pot are no different from a doctor who might recommend heroin or LSD, Solicitor General Theodore Olson argued.

At issue is a Clinton-era policy that requires revocation of federal prescription licenses of doctors who recommend marijuana.

The appeals court said the policy interferes with free-speech rights of doctors and patients. Physicians should be able to speak candidly with patients without fear of government sanctions, the court said, but they can be punished if they help patients obtain the drug.