Nov. 29 (Bloomberg) -- Several U.S. Supreme Court justices expressed doubts that states can let seriously ill patients ease their symptoms by using marijuana, a drug the federal government has designated as illegal.

The Bush administration is appealing a lower court decision allowing two California women to use marijuana on their doctors' recommendation. The administration says the federal Controlled Substances Act, which lists marijuana among the most strictly controlled drugs such as cocaine and LSD, overrides laws in nine states that permit medical use of marijuana.

There's no reason to believe ``everybody is going to get it from a friend or from plants in the back yard,'' Justice David H. Souter told the lawyer for the two women. ``They're going to get it in the street. Why isn't that the sensible assumption?''

The case pits the federal drug law against a line of Supreme Court decisions that tilted the federal-state balance of power toward the states. The court ruled in 1995 that Congress couldn't make it a federal crime to possess a gun in a school zone, and in 2000 the justices struck down a provision that let rape victims sue their attackers in federal court.

In those cases the court said Congress's authority to regulate interstate commerce didn't cover local, non-economic acts. In today's case, the two California women say the same logic means Congress can't ban the doctor-recommended use of locally grown marijuana that doesn't cross state lines.

Chief Justice

Chief Justice William H. Rehnquist, who has been undergoing treatment for thyroid cancer with radiation and chemotherapy, didn't attend the hour-long argument in Washington. Justice John Paul Stevens, who presided over the session, said Rehnquist will participate in the case by reading court briefs and a transcript of the argument.

``People are sick and people are suffering and people are dying,'' said attorney Randy Barnett, representing California patients Angel Raich and Diane Monson. He said the medical use of marijuana would have a ``trivial'' effect on the illegal market for the drug.

Acting U.S. Solicitor General Paul Clement said medical use of marijuana ``is not something that's going to be limited to one or two users at a time.'' He said the California law might allow use of the drug by 100,000 patients, including many whose condition isn't terminal.

``Any little island of lawful possession'' creates a ``real challenge to the statutory regime,'' Clement said.

No `Medical Necessity'

Justice Antonin Scalia asked Barnett how his logic would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.

``Are those laws likewise unconstitutional?'' Scalia asked.

Other states that allow medical use of marijuana are Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington, lawyers for the two women said in court papers.

In an earlier marijuana case in 2001, the Supreme Court ruled there was no ``medical necessity'' exception to the controlled- substance law.

Federal regulation of marijuana possession helps limit demand for the drug, on which users spend about $10.5 billion a year, Clement said.

The case is Ashcroft v. Raich, 03-1454.

To contact the reporter on this story: Laurie Asseo in Washington at lasseo1@bloomberg.net.

Last Updated: November 29, 2004 12:11 EST