Medical marijuana backers pleased by justices' decision

June 28, 2004

, Marin IJ

Marin's medical marijuana advocates applauded yesterday's U.S. Supreme Court decision to hear a case that could determine whether sick people who smoke pot on a doctor's orders are subject to a federal ban.

'The case is so strong. We are delighted the Supreme Court will be hearing our evidence,' said Lynnette Shaw, director of the Fairfax-based Marin Alliance for Medical Marijuana, which is not directly involved in the legal case. 'This is going to expose (the Bush administration's) rotten underbelly just before the election. I couldn't be more pleased.

'

The court agreed to hear the Bush administration's appeal of a case it lost last year involving two California women who say marijuana is the only drug that helps alleviate their chronic pain and other medical problems.

The high court will hear the case next winter. It was among eight new cases the court added to its calendar for the coming term. The current term is expected to end this week.

The marijuana case came to the Supreme Court after the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in December that a federal law outlawing marijuana does not apply to California patients whose doctors have prescribed the drug.

In its 2-1 decision, the appeals court said prosecuting medical marijuana users under the federal Controlled Substances Act is unconstitutional if the marijuana is not sold, transported across state lines or used for non-medicinal purposes.

Judge Harry Pregerson wrote for the appeals court majority that smoking pot on the advice of a doctor is 'different in kind from drug trafficking.' The court added that 'this limited use is clearly distinct from the broader illicit drug market.'

In its appeal to the justices, the government argued that state laws making exceptions for 'medical marijuana' are trumped by federal drug laws.

Congress passed the Controlled Substances Act to control 'all manufacturing, possession and distribution of any' drug it lists, Bush administration Supreme Court lawyer Theodore Olson wrote.

'That goal cannot be achieved if the intrastate manufacturing, possession and distribution of a drug may occur without any federal regulation.'

California's 1996 medical marijuana law allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation. Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington state have laws similar to California. Thirty-five states have passed legislation recognizing marijuana's medicinal value.

In states with medical marijuana laws, doctors can give written or oral recommendations on marijuana to patients with cancer, HIV and other serious illnesses.

The case concerned two seriously ill California women, Angel Raich and Diane Monson. The two had sued Attorney General John Ashcroft, asking for a court order letting them smoke, grow or obtain marijuana without fear of federal prosecution.

Raich, a 38-year-old Oakland woman suffering from ailments including scoliosis, a brain tumor, chronic nausea, fatigue and pain, smokes marijuana every few hours. She said she was partly paralyzed until she started smoking pot.

In 2001, the Supreme Court ruled that members-only clubs that had formed to distribute medical marijuana could not claim their activity was protected by 'medical necessity,' even if patients have a doctor's recommendation to use the drug.

Last fall, however, the high court refused to hear a separate Bush administration request to consider whether the federal government can punish doctors for recommending the drug to sick patients.

Shaw said she is an old friend of Raich's who, like herself, is from the Stockton area. In the late 1990s, supplies were limited and Raich's husband at the time did not approve of the use of medical marijuana, Shaw said. Shaw used to bring her brownies with the plant baked in the dessert and a small amount to smoke.

For her friend, marijuana has made a dramatic difference, Shaw said.

'I know that it has been a blessing in her life and she has blessed us,' Shaw said, referring to Raich's contribution to the medical marijuana movement by pursuing the legal case. 'I'm very proud of her.'

IJ reporter Jennifer Upshaw contributed to this report.



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