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Medical marijuana before Supreme Court
Federal power to control drug use vs. states' health care laws

San Francisco Chronicle
November 28, 2004
Bob Egelko


Two Northern California women who say medical marijuana is their only shield from a life of agony take their case to the U.S. Supreme Court on Monday in a clash between federal power to regulate drug use and a state's authority to determine medical care for its residents.

It is a case of unusual alliances, with some prominent conservative organizations siding with the patients on the issue of states' rights and limited federal powers. A ruling is due by the end of June.

This will be the court's first look at medical marijuana since 2001, when the justices upheld the federal shutdown of an Oakland pot dispensary and found no exemption in federal drug laws for claims of medical necessity. The case appears to represent advocates' last hope of winning legal protection from the federal crackdown that began in 1996, when Californians approved the nation's first law allowing patients to use marijuana with a doctor's approval.

Similar laws have been passed since then in nine other states: Washington, Oregon, Alaska, Hawaii, Nevada, Colorado, Maine, Vermont and Montana. But federal law since 1970 has classified marijuana as a dangerous drug with no legitimate use and has prohibited possession, cultivation and distribution.

The Bush administration has enforced the law aggressively in California, with a series of raids and criminal prosecutions. The question before the court is whether individual patients -- and, possibly, some of their suppliers -- are immune from federal enforcement.

The argument goes like this: The Constitution authorizes Congress to regulate interstate commerce. But no interstate commerce is involved when patients, acting legally under state law, use marijuana that was grown within the state and supplied without charge.

The counterargument, by the government and its allies, is that all illicit drug use affects interstate commerce. Even freely supplied marijuana boosts the demand for the drug, reduces the overall supply and may affect the price, the government says; in addition, pot looks the same whether it's grown locally or shipped between states.

The Ninth U.S. Circuit Court of Appeals in San Francisco ruled in favor of the patients last December, saying their use of marijuana was noncommercial and was beyond the power of Congress to prohibit. The court also told federal judges to decide whether the ruling -- if it survives Supreme Court review - - would protect a marijuana cooperative in Oakland, which was closed by a government lawsuit, and another in Santa Cruz, which was raided by federal agents.

One of the plaintiffs in the case before the Supreme Court, Angel Raich of Oakland, obtains marijuana from two anonymous suppliers and uses it every two hours to ward off pain and loss of appetite from a brain tumor, seizure disorder and other debilitating conditions. Co-plaintiff Diane Monson of Oroville (Butte County) takes marijuana to combat back pain and muscle spasms and grew her own plants until federal agents seized them in 2002. Both have doctors' recommendations and say they tried all available legal medicines without success.

Their hopes depend on swaying one or more of the court's conservative justices, who, under the banner of federalism, have issued a series of rulings since 1995 limiting the federal government's power over the states. Two rulings have overturned federal laws -- one that banned gun possession near schools, another that allowed victims of rape and domestic violence to sue in federal court -- on the grounds that they did not affect interstate commerce.

To that end, lawyers for Raich and Monson have enlisted major conservative and libertarian groups to woo the justices on states' rights.

In one court filing, the Cato Institute argued that the power-sharing agreement made by the original 13 states in ratifying the Constitution "is dishonored when citizens in great physical pain are deprived of available medical treatment by a remote sovereign on the far side of the continent.''

"Federalism ... allows for experimentation at the state level,'' declared the Institute for Justice, another conservative-leaning libertarian organization, whose brief called for a return to limits imposed by courts in the 1930s on federal authority to regulate in-state activities.

On the other side, the government's supporters include one group, Community Rights Counsel, usually associated with liberal causes such as environmental protection. Its brief urged the court to preserve federal "legislative flexibility to address national concerns'' such as drug trafficking.

Another hurdle for Raich and Monson is the fact that they are asking the court to grant a partial exemption to the government-declared war on drugs for states with medical marijuana laws. This would be in open defiance of Congress, which has repeatedly declared that marijuana has no medical value.

"The 'medical marijuana' concept is a Trojan horse tactic toward the goal of legalization,'' said the Drug Free America Foundation and other anti-drug organizations in a filing in support of the federal government's position. They said initiatives like California's Proposition 215 promote "medicine by popular vote.''

A brief by seven Republican members of Congress said exempting medical patients from federal marijuana laws would make their states "a haven for drug traffickers'' and return the nation to "the 19th-century age of quack medicine. '' The Justice Department, in its written arguments, warned that any exemption for in-state possession and distribution would create a new class of drug manufacturers and pharmacies immune from federal regulation.

Medical marijuana advocates and their allies responded indignantly.

"Just because Congress says it does not make it so,'' said the National Organization for the Reform of Marijuana Laws, referring to congressional findings on the dangerousness and uselessness of marijuana. "The chronically ill in California are the casualties in this war.''

The patients also draw support from some medical organizations, including the California Medical Association, which signed a brief arguing that seriously ill people should make their own medical decisions, in consultation with health professionals.

In this case, the brief said, "the alternative to which the government would relegate them is ... a life of unremitting, unrelieved physical pain.''

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

 

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