Pot Fight Far From Over

June 07, 2005

Daniel N. Abrahamson, Guest Columnist, Los Angeles Daily News

Legally speaking, the Supreme Court's decision on Monday was unsurprising and broke no new ground.  The court, in Gonzales v.  Raich, did what most observers predicted: It reaffirmed that federal law-enforcement officials have the power to enforce federal laws banning marijuana possession and cultivation against seriously ill patients who use physician-approved marijuana for medical purposes.

In so ruling, the court maintained the legal status quo that has been in place for several decades.  The court also presented an important opportunity for Congress to take action in defense of vulnerable patients.

As a practical matter, the court's decision promises to perpetuate the political standoff, brewing since the mid-1990s, between state and federal governments regarding medical marijuana.  Despite the Raich ruling, states remain free to enact and enforce laws permitting sick people to use medical marijuana.  Meanwhile, the federal government still has a choice: It can waste taxpayer dollars by going after sick and dying patients or pursue individuals who pose a real danger to society.

In the last eight years, 10 states have enacted statutes permitting seriously ill patients to use physician-approved medical marijuana to relieve their suffering.  It is conservatively estimated that at least 100,000 such patients are benefiting from these laws.

The Raich case involved a valiant legal gambit by two California patients, Angel Raich and Diane Monson, to prevent federal law-enforcement officials from seizing their herbal medicine and arresting them for violating federal drug laws.  Raich suffers from multiple debilitating conditions, including an inoperable brain tumor, scoliosis, endometriosis and fibromyalgia.  She had tried 30 medicines, none of which helped alleviate her pain, before she turned to marijuana as a last resort, and, as her physician states, marijuana has proved to be her only effective analgesic.

Nevertheless, the high court refused to rein in the power of federal police to interfere with her state-sanctioned medicine.

Mounting scientific evidence from researchers around the globe about marijuana's medical efficacy, the continuous outpouring of patient and physician testimonials, and the refusal of Congress to change federal law on this issue are almost certain to energize more states to pass laws that confer state protections on persons who need medical marijuana.

Indeed, even the Supreme Court acknowledged in its Raich decision that the evidence on behalf of medical marijuana should 'cast serious doubt' on Congress' decision to keep it illegal under federal law.  Along these lines, the U.S.  House of Representatives will soon consider a bipartisan amendment authored by Rep.  Maurice Hinchey, D-N.Y., and Rep.  Dana Rohrabacher, R-Calif., which would prohibit the Justice Department and Drug Enforcement Agency from spending any money on undermining state medical-marijuana laws.

Last year almost 150 representatives signed on to the Hinchey-Rohrabacher amendment, and this year it is poised to pick up more support.

But whether it passes or not, the Raich decision will further motivate state and local officials to devise innovative methods and procedures to help insulate seriously ill individuals from the prying eyes and heavy-handed tactics of federal police.  For example, several municipalities have already enacted or are considering ordinances that would prevent local police from sharing information or resources with federal agents about medical-marijuana patients, gardens and dispensaries.

If history is any guide, it appears that federal officials lack either the will or the resources to arrest or prosecute more than a small handful of the tens of thousands of persons currently using medical marijuana around the country, perhaps because federal juries are reluctant to convict sick people for using a medicine that relieves their pain.  Of course, even a single federal prosecution of a sick person for using a physician-recommended medication is one too many; but as a practical matter, the average medical-marijuana patient who complies with state law will likely have little to fear from the federal police.

Although the Supreme Court in 2003 let stand a lower court ruling permitting physicians to recommend marijuana to patients under the First Amendment, the Raich decision represents the second time in recent years that the Supreme Court has denied legal relief to medical-marijuana advocates.

But Raich does not spell the end of federal litigation in this area.  Other cases involving medical-marijuana patients are awaiting decision in lower federal courts, raising new and important constitutional questions left open by the Raich decision.  What is more, states will continue to experiment in expanding state legal protections for patients, perhaps below federal radar, as communities mobilize to reduce the pain and suffering of the seriously ill.   

Daniel Abrahamson is the director of legal affairs for the Drug
Policy Alliance.

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