Medical Marijuana, Suicide and States' Rights

June 28, 2004

James J. Kilpatrick, Syndicated Columnist

The big news from the Supreme Court on Monday (June 28) had to do with the rights of prisoners, both at home and abroad. The more significant news had to do with the rights of two seriously ill women in California. They are human beings who might benefit from marijuana. 

In all the commotion over the president's powers as commander in chief, no one paid much attention to a brief order in Case No. 03-1454, Ashcroft v. Raich. By agreeing to hear the case, the high court has provided an opportunity to strike a blow for liberty. The case will be argued next year.

This is the story. Two years ago, Angel (news - web sites) McClary Raich and a co-plaintiff, Diane Monson, sued Attorney General John Ashcroft (news - web sites). They won a court order in the 9th Circuit that prevents him from prosecuting them for the personal use of marijuana. Raich suffers from an inoperable brain tumor. Conventional medications have given her no relief from constant pain, but marijuana -- provided free of charge by two friends -- has been helpful. Monson suffers from severe chronic back pain and muscle spasms. Traditional medications 'have utterly failed.' Seeking relief, she seeks to grow in her own garden a small quantity of marijuana solely for her own use.

The attorney general is indifferent to the women's plea. Marijuana (cannabis) is on the government's list of forbidden substances. It has 'a substantial and detrimental effect on the health and general welfare of the American people.' It has a 'high potential for abuse.' The federal Controlled Substances Act makes it a criminal offense to possess the aromatic weed. Ashcroft's response: Let 'em suffer.

The act is rooted in the power vested in Congress to regulate commerce among the several states. In the 9th Circuit, Raich and Monson argued successfully that the facts could not support the government's reliance on the Commerce Clause. The amounts of marijuana were infinitesimal; the drug (if it may be termed a drug) was not sold. There was no impact on 'commerce' as the term is used today.

The government argued to the contrary that the case should be controlled by a 1942 opinion known as Wickard v. Filburn. Here the Supreme Court ruled unanimously that Roscoe Filburn, a small farmer in Ohio, violated federal crop quotas. Without a permit he had grown an extra 239 bushels of wheat for his own farm and family use. Compared to a national harvest in the millions of bushels, his crop was piddling. The court held that every little bit adds up.

So much for the two sick women in California. The Supreme Court will hear their plea.

Five weeks ago a relevant case from Oregon moved upward in the federal courts. Here the issue goes beyond a person's right to medicate himself. It involves a person's right to kill himself. The case is Oregon v. Ashcroft, decided by a panel of the 9th Circuit on May 26.

Under Oregon's Death With Dignity Act, a physician may prescribe a lethal drug for a patient suffering a terminal illness. There are many safeguards. Two other physicians must confirm the diagnosis, and the patient must sign a written and witnessed request for the fatal dose.

The attorney general's position is that physician-assisted suicide serves no 'legitimate medical purpose.' It is inconsistent with the public interest, he contends, for doctors to participate in a patient's suicide. He has published a directive warning of criminal prosecution if doctors disobey.

Speaking through Judge Richard C. Tallman, the panel held 2-1 that Ashcroft had overstepped the bounds of his power. Tallman emphasized that he and Judge Donald P. Lay were not expressing an opinion on the morality of suicide or on the ethical standards of medical care. 'This case is simply about who gets to decide. The question is whether Congress has authorized the attorney general to determine that physicians who assist in suicide are violating the Controlled Substances Act.'

Tallman said: 'Given the plain language of the Controlled Substances Act and its legislative record, we are under no obligation to defer to the attorney general's interpretation of his role. ... We also note that the attorney general has no specialized expertise in the field of medicine ...'

The Raich/Monson case and the Oregon case ought to be combined as one more test of the outer limits of the Commerce Clause. My own feeling in these cases is that interstate commerce stops where a doctor's role begins.



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