Court Loss For Medical Marijuana

June 06, 2005

Stephen Henderson, Philadelphia Inquirer

The Supreme Court, siding with federal authority over states' rights and terminally ill patients, said yesterday that the government 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 11 states that have approved medical marijuana, but it does deflate their power to protect users and doctors who prescribe the drug.

Regulation of illicit drugs is a matter of interstate commerce, reserved exclusively to the federal government by the Constitution, the court said.  That includes regulating local activities - such as the growing and consumption of medical marijuana - that could affect 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 court said.

The decision in Gonzales v.  Raich 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 yesterday that her own decision was a no-brainer.

'If I stop using it, I would die,' said Raich, who admitted she was smoking even as she talked with reporters by phone about the ruling.

Raich has an inoperable brain tumor; scoliosis, or curvature of the spine; and several other permanent disabilities, and says other medications have been ineffective.  'I do not have a choice but to continue using cannabis,' she said.

Raich and her attorneys said their next move would be 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 will also go back to court to fully litigate a claim, undecided by the high court, that they have a constitutional right to disregard the federal drug law out of medical necessity.

The Justice Department did not say yesterday how aggressive it would be in pursuing prosecutions against medical-marijuana users.

John Walters, director of national drug-control policy, defended the federal ban, saying: 'Science and research have not determined that smoking marijuana is safe or effective.'

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 the question the court faced, Stevens said, was whether Congress' power to regulate interstate markets could reach into areas such as medicinal marijuana, in which the drug is 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 M.  Kennedy, Antonin Scalia, David H.  Souter, Ruth Bader Ginsburg, and Stephen G.  Breyer.

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

Monson and 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 H.  Rehnquist also dissented, as did Justice Sandra Day O'Connor, who wrote separately.

Key to the court's decision was a determination that there was no such thing as personally grown or consumed marijuana that does not affect 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, since they were not buying or selling marijuana.

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

'The likelihood that all such production...  will precisely match the patients' medical needs...  seems remote,' Stevens said, 'whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.'

O'Connor took issue with that logic.  'The court's definition of economic activity...  threatens to sweep all of productive human activity into federal regulatory reach,' she wrote.  'To draw the line wherever private activity affects the demand for market goods is to draw no line at all.  We have already rejected the result that would follow - a federal police power.'

The case has its roots in a 2002 federal raid on Monson's Oroville farm.  She was growing marijuana and smoking it to ease her back pain.

The raid was tied to a federal crackdown in the fight against terror; President Bush has said the illegal drug trade helps finance terrorists.

But the raid also brought federal power into conflict with a 1996 California law that permits doctors to prescribe marijuana to patients, who are allowed to grow it.  The raid inspired Monson and Raich to sue, arguing that the federal government could not enforce its ban on marijuana in a state that had legalized its medicinal use.

Ten other states - Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington - have similar laws.

California Attorney General Bill Lockyer said yesterday in regard to his state's law: 'People shouldn't panic...  .  There aren't going to be many changes.'

Be the first to Comment

Please check your e-mail for a link to activate your account.