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Medical pot users say they won't stop
Court's ruling: States can't shield patients from U.S. law

San Francisco Chronicle
June 7, 2005
Bob Egelko


The U.S. Supreme Court delivered a blow to the medical marijuana movement Monday, ruling that the federal government has the power to prosecute patients whose actions are legal under state law.

The 6-3 ruling rejected two Northern California women's claims that the marijuana they take for serious medical conditions is beyond the constitutional reach of federal drug laws because it is locally grown and supplied without charge. The ruling comes four years after the court allowed federal authorities to shut down an Oakland medical marijuana club and spurned the club's claim that it had a right to serve patients with dire medical needs.

The federal laws that bar possessing, growing and furnishing marijuana, and classify it as a substance with no legitimate use are authorized by Congress' power to regulate interstate commerce, even when applied to transactions that are neither interstate nor commercial, Justice John Paul Stevens wrote for the majority.

Because there is no difference between locally grown and out-of-state marijuana, and no way to guarantee that drugs won't wind up in illicit markets, "Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole'' in federal drug laws, Stevens said. He called the case difficult and troubling but said any change must come from Congress.

Dissenters said the ruling gives the federal government more power over state affairs than the framers of the Constitution intended.

"This overreaching stifles an express choice by some states, concerned for the lives and liberties of their people, to regulate medical marijuana differently,'' Justice Sandra Day O'Connor said.

The ruling does not repeal California's Proposition 215, a 1996 initiative that served as a model for laws in nine other states that protect patients from state prosecution if they obtain marijuana with a recommendation from their doctor. But this decision and the high court's 2001 ruling in the Oakland case give federal prosecutors and law enforcement agencies free rein to disrupt the state laws by seizing marijuana plants and prosecuting patients and their suppliers.

Former President Bill Clinton's administration reacted to Prop. 215 by filing civil suits against pot clubs that sprang up around the state. President Bush said during his 2000 campaign that the issue should be left to the states, but his administration has raided and prosecuted medical marijuana suppliers in California.

Both administrations also tried to punish doctors who recommended marijuana to their patients, but federal courts ruled in the doctors' favor.

"Today's decision marks the end of medical marijuana as a political issue, '' declared the Bush administration's chief of drug control policy, John Walters. "We have a responsibility as a civilized society to ensure that the medicine Americans receive from their doctors is effective, safe and free from the pro-drug policies that are being promoted in America under the guise of medicine.''

On the other side, Angel Raich of Oakland, lead plaintiff in the case on which the Supreme Court ruled Monday, said she won't stop her practice of taking marijuana every two hours -- to combat the pain of scoliosis, endometriosis, seizures and a life-threatening wasting syndrome -- or advocating its legalization for medical use. She plans to visit Congress next week to lobby for a bill that would cut off funding for enforcement of federal drug laws against medical marijuana in states where it is legal.

"If I stopped using cannabis, I would die,'' Raich, 39, said in a telephone news conference, telling reporters that she was taking the drug while speaking to them. "I do not feel that patients are going to stop using their medicine just because the Supreme Court has ruled against them. ... I would like to be able to follow the law, (but) the law is unjust.''

Co-plaintiff Diane Monson of Oroville (Butte County) also said she will continue to use marijuana, with her doctor's approval, to fend off pain from back spasms.

Federal agents seized six marijuana plants from Monson's property in 2002. She then joined Raich, who got her marijuana from two anonymous growers, in a civil suit claiming immunity from federal enforcement.

State Attorney General Bill Lockyer, who filed arguments in support of the two women, said Monday's ruling "shows the vast philosophical differences between the federal government and Californians on the rights of patients to have access to the medicine they need to survive and lead healthier lives.''

This isn't necessarily the last word from the federal courts; one issue not yet addressed in Raich and Monson's case is their argument that they have a constitutional right to take substances that prevent agony or death.

But Monday's ruling doused marijuana advocates' hopes that a states' rights argument would sway a court that has limited federal power over the states on other matters. One such ruling, in 1995, struck down a federal law banning gun possession near schools; another ruling, in 2000, overturned a law allowing perpetrators of domestic violence to be prosecuted or sued in federal court.

Raich and Monson drew support from some conservative organizations that oppose federal regulation. The government was supported by the Community Rights Counsel, a liberal group that feared a ruling in favor of the patients would weaken federal regulation of health care and the environment.

In 2003, the U.S. Court of Appeals for the Ninth Circuit in San Francisco barred federal prosecution of the two women and other medical marijuana patients, saying federal drug law does not apply to noncommercial use of marijuana by individuals. The ruling also raised the possibility that marijuana cooperatives in Santa Cruz (the target of a federal raid) and Oakland (subject of the 2001 Supreme Court decision and shutdown order) would win protection from federal enforcement.

In Monday's majority opinion, however, Stevens said the narcotics trade is a lucrative nationwide enterprise that Congress is entitled to regulate. Exempting personal medical use -- under a loosely written state law that could be abused by profit-hungry doctors as well as drug traffickers -- would affect both supply and demand, he said.

He was joined by the other three members of the court's moderate to liberal wing, Justices David Souter, Stephen Breyer and Ruth Bader Ginsburg, who have generally favored preserving federal power. O'Connor and her fellow dissenters, Chief Justice William Rehnquist and Justice Clarence Thomas, have voted to restrict federal power over the states.

The two deciding votes were cast by Justices Anthony Kennedy, a moderate conservative, and Antonin Scalia, a staunch conservative, both of whom have voted for state autonomy in other cases but sided with the majority Monday.

In a separate opinion from Stevens', Scalia wrote that "marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market,'' even if it is for medicinal use.

Dissenters retorted that the same could be said of other locally circulated commodities, like guns possessed near schools, the subject of the 1995 ruling limiting federal authority. "If Congress can regulate this (the two patients' marijuana) under the Commerce Clause,'' Thomas wrote, "then it can regulate virtually anything.''.

The case is Gonzales vs. Raich, 03-1454.
________________________________________

What U.S. Supreme Court decision means


Q: What was the court majority's reasoning?
A: The Ninth U.S. Circuit Court of Appeals in San Francisco had ruled that Congress lacked the constitutional authority to regulate the noncommercial cultivation and use of marijuana that does not cross state lines. But the Supreme Court held that Congress acted within its broad power to regulate interstate commerce. The court, noting the lucrative interstate trade in illegal drugs, said Congress could reasonably conclude that allowing people to use home-grown marijuana would lead to trafficking in the drug under the guise of medicinal use.

Q: Does this strike down Proposition 215?
A: No. California's Prop. 215 and similar laws in nine other states remain on the books. But the ruling allows the federal government to prosecute patients and their suppliers in any of those states.

Q: Will the ruling affect the availability of marijuana to patients now using it?
A: Probably not, because the federal government says it has no interest in going after individual patients and small suppliers, leaving most regulation and enforcement up to state and local authorities. But the potential for federal raids could affect local supplies.

Q: Are there any remaining legal challenges to federal authority?
A: Lawyers for patients Angel Raich and Diane Monson have one argument that the courts have not addressed: that patients have a constitutional right to use medication that will save them from death or severe pain. The lawyers say they'll offer that argument when the case is returned to a federal appeals court.

Q: Is Congress planning legislation on medical marijuana?
A: Bills have been repeatedly proposed, unsuccessfully so far, to ban enforcement of federal drug laws against medical marijuana cultivation or use that is legal in a state. A bill expected to come before the House next week would cut off funding for such enforcement.

Source: Chronicle staff and news services

E-mail Bob Egelko at begelko@sfchronicle.com.

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