Court's Medical Marijuana Ruling May Do Little to Clear the Air

June 06, 2005

Steven Henderson, Knight Ridder Newspapers, Kansas City Star

The Supreme Court said Monday that federal authorities can prosecute sick people who smoke marijuana as a painkiller -- even in states where such use is legal. The 6-3 ruling, which crossed the court's usual ideological lines, does not invalidate laws in the 10 states that have approved medical marijuana, but it does deflate their power to protect users and doctors who prescribe the drug.

The court said the regulation of illicit drugs is a matter of interstate commerce, reserved exclusively to the federal government by the Constitution.  That includes regulating local activities, such as the growing and consumption of medical marijuana, that could have an effect on interstate markets.  So the federal Controlled Substance Act of 1970, which classifies marijuana as a drug unacceptable for any use, holds sway over any state provisions that say otherwise.

The ruling may hurt efforts to pass laws in other states, because the federal government's prosecution authority trumps states' wishes.

By a majority of 69 percent, Missouri voters in Columbia approved a ballot measure last November that allows patients who have their doctor's permission to possess small amounts of marijuana.

'I suspect there are hundreds of patients using marijuana' in Columbia, said lawyer Dan Viets, who worked to pass the measure.

Some lawyers who have followed the controversy closely predicted that the ruling would not bring sweeping changes, because most marijuana prosecutions are undertaken by state and local officials rather than federal authorities.  ( Monday's ruling, which had to do with growing and possessing marijuana, does not affect the doctors who advise their patients to take the drug.  )

'I'm certain the Bush administration is not so foolish as to launch a broad attack on people with cancer, AIDS and MS,' Viets said.

To Christy Welliver, a Columbia resident who has multiple sclerosis, marijuana is 'like any other medication in the world.'

Welliver coordinates the 400-member support group of the Multiple Sclerosis Institute in Columbia.  She estimated that as many as 10 percent of the group's members use marijuana to relieve such symptoms as involuntary contractions of the muscles in their arms and legs.

Welliver said she tried marijuana but did not find it useful.

'For others, it works very well,' Welliver said.  'It's extremely important to a large number of people with MS.'

The decision means patients such as Diane Monson and Angel Raich, the California women who challenged the federal law, risk federal prosecution if they do not stop growing and smoking marijuana.

Raich said Monday that her decision was an obvious one.

'If I stop using it, I would die,' said Raich, who admitted she was smoking marijuana as she talked with reporters by phone about the ruling.  She suffers from an inoperable brain tumor, scoliosis and several other permanent disabilities, and other medications have been ineffective.  'I do not have a choice but to continue using cannabis,' Raich said.

Raich and her attorneys said their next move is to Congress, where they hope to persuade lawmakers to restrain the Justice Department from spending money to prosecute medical marijuana users in states that permit it.  They also will go back to court to fully litigate a claim, undecided by the Supreme Court, that they have a constitutional right to disregard the federal drug law out of medical necessity.

The Justice Department did not say Monday how aggressively it would pursue prosecutions against medical marijuana users.

In his opinion for the court, Justice John Paul Stevens sympathized with Raich and others who use marijuana, saying the case was complicated by their claims that they would 'suffer irreparable harm' if the court ruled against them.

But Stevens said the question the court faced was whether Congress' power to regulate interstate markets could reach into areas such as medicinal marijuana, where drugs are produced and consumed locally.

'Well-settled law controls our answer,' Stevens wrote.  The Controlled Substances Act 'is a valid exercise of federal power, even as applied to the troubling facts of this case.' Stevens' opinion was joined by Justices Anthony Kennedy, Antonin Scalia, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

In a strongly worded dissent, Justice Clarence Thomas said the court had opened the door to nearly unlimited government regulation.

'Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines and that has had no demonstrable effect on the national market for marijuana,' Thomas wrote.  'If Commerce can regulate this ...  then it can regulate virtually anything.'

Chief Justice William Rehnquist also dissented, as did Justice Sandra Day O'Connor, who wrote separately.

Key to the court's decision was a determination that there is no such thing as personally grown or consumed marijuana that does not have an effect on the broader drug market.  Monson and Raich had maintained that their drugs existed in a parallel market that had no effect on the illicit drug trade, because they are not buying or selling marijuana.

But Stevens found the effect of their activity on interstate markets 'readily apparent,' given that the California law only loosely restricted the amount of marijuana patients could grow.  

The Star's Alan Bavley, The Associated Press and The New York Times contributed to this report. 

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