Marijuana! Supreme Court Just Says No

June 09, 2005

Daniel Henninger (Columnist), Wall Street Journal

The Supreme Court's liberal bloc--Stevens, Ginsburg, Souter and Breyer--ensured Monday with the support of Justices Kennedy and Scalia that people sick from cancer treatment will have to think first about a house call from the federal drug police before using marijuana to relieve their symptoms. Even the Court's language was unfeeling: 'The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the . . .

undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim.'

Liberalism to cancer patients: Drop dead.

Meanwhile, dissents on behalf of medical marijuana were written by Sandra Day O'Connor, a cancer survivor, and Clarence Thomas, whose nomination was fought by recreational pot users.

Medical marijuana sounds simple. Cancer patients receiving chemotherapy often endure extreme nausea, and many say that smoking marijuana during chemo makes it bearable. Many of us know sober folks who have done this. So why is this a Supreme Court case? Because this is America, where nothing is so simple that it can't be turned into a federal case.

If the Court's four liberals had ruled in favor of state laws allowing medical marijuana, which federal law forbids, that precedent would have helped conservative efforts to reduce federal clout in other areas, such as environmental authority in the West. Thus Justice Stevens wrote that the Controlled Substances Act, a Nixon-era law, 'is a valid exercise of federal power, even as applied to the troubling facts of this case.' Liberals with cancer should take solace in knowing they will be vomiting to save the snail darter.

In his dissent, Justice Thomas, liberalism's archfiend, noted: 'The majority prevents states like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill.' And: 'Our federalist system, properly understood, allows California and a growing number of other states to decide for themselves how to safeguard the health and welfare of their citizens.'

This is an abstruse but important legal debate about the Commerce Clause and federal legal power in the 21st century. Liberals, if they wanted to, could recognize that letting the states take the lead on controversial issues involving behavior among consenting adults--both personal and commercial--might abet their beliefs in this day and age. But they won't. Thus friends sick with cancer must choke down this decision.

Not all cancer patients are interested in the Hundred Years War underway between conservatives and liberals. They probably think common sense should allow Justice Thomas's 'much-needed respite.' The usual tangle of public policy makes that difficult.

American medicine isn't adept at pain management. Writing in the New England Journal of Medicine, Drs. Jane Ballantyne and Jianren Mao said: 'The recognition that opioid therapy [such as morphine] can relieve pain and improve mood and functioning in many patients with chronic pain has led experts on pain to recommend that such patients not be denied opioids. Despite this recommendation, many physicians remain uncertain about prescribing opioids to treat chronic pain and do not prescribe them.' They conclude even this article, however, by urging doctors to resist patients' pressure to greatly increase opioid dosage.

Medical disagreement or confusion about pain treatment is only the start. Doctors with cancer patients also may have visited the Web site of the U.S. Drug Enforcement Administration--the aggressive federal cops. Beneath an image of a DEA police badge, one finds an article: 'Exposing the Myth of Smoked Medical Marijuana.'

Studies of physician fear of prosecution have been done, which conclude that prosecutions of honest doctors prescribing such pain-killers are rare. That point was made in news articles the day after the medical marijuana decision. Late last year, I accompanied a patient with extreme spinal pain to the office of a pain specialist whose first words were that if the subject was opiate-based therapy, we should leave. End of conversation.

To address this concern, Congress several years ago took up the Pain Relief Promotion Act. It collapsed amid the controversy over physician-assisted suicide. Most docs already believe that the U.S. system of justice is irrational, and if patients have to share the pain, so to speak, that's too bad.

Once-in-a-lifetime users of medical marijuana are also collateral damage in the war on drugs. Writing for the majority, Justice Stevens said, with approval: 'Congress was particularly concerned [in 1970] with the need to prevent the diversion of drugs from legitimate to illicit channels.' Some argue, including proponents of drug legalization, that a Supreme Court imprimatur for medical marijuana would have no relevance to campaigns to legalize recreational use of this and other drugs. I don't believe that. There isn't much self-restraint in our activist politics.

What now? My guess is 99.99% of medical marijuana users won't get prosecuted. Society's disapproval of marijuana stays in place, but patients get their drug. Live and let live. Benevolent hypocrisy comes in handy in a free country when public politics, as now, often makes sensible solutions impossible.

Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on

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