Court hears medical marijuana case

November 29, 2004

Jan Crawford Greenburg, Chicago Tribune

WASHINGTON -- The Supreme Court on Monday jumped into the fight over the use of illegal drugs for health purposes, as the justices took up a debate that has focused on whether allowing medical marijuana use is a necessary kindness in a compassionate society or a dangerous move that could undermine the fight against narcotics. The immediate subject was the scope of federal power and whether the federal government's strict anti-drug laws should override a California statute that allows those suffering from chronic pain or other symptoms to use marijuana under a doctor's supervision. The justices fired questions at lawyers on both sides.

Justice Sandra Day O'Connor asked a Justice Department lawyer how the case differed from previous cases in which the court scaled back the federal government's role. But Justice Antonin Scalia, in his questions to a lawyer defending medical marijuana, suggested that the federal government did, in fact, have an interest in regulating such drug use.

Relief for pain

The case involves two California women who say they use marijuana for medical reasons because other types of conventional medication have not alleviated their chronic pain. In court papers, Angel Raich and Diane Monson described in heart-wrenching detail living with chronic pain, saying marijuana was their only hope for normal lives.

California voters in 1996 approved the use of marijuana for medical purposes, and 10 other states have similar laws. But the federal government says marijuana use is illegal under federal law, even when used for medical reasons with a doctor's permission.

Raich and Monson sued to block federal drug laws from being used against them, arguing that Congress lacks power under the Constitution to pass such laws in the guise of regulating interstate commerce.

The Constitution gives Congress limited powers--including the power to raise taxes, declare war and regulate interstate commerce--and leaves the rest to the states. For decades, the Supreme Court took the position that virtually every law affected commerce and nothing was outside Congress' domain.

But that thinking has changed in recent years.

Led by Chief Justice William Rehnquist, the court's conservative justices have joined to scale back Congress' power to pass laws in matters traditionally handled by states. In a series of 5-4 decisions, the court has sharply rebuked Congress for intruding on state law-enforcement and invalidated federal laws the justices said had no relation to interstate commerce.

The marijuana case gives the court an opportunity to draw clearer lines between what relates to interstate commerce and what should be left to states.

But Monday's argument took place without Rehnquist, who has thyroid cancer. Justice John Paul Stevens, the court's senior associate justice, announced in court that Rehnquist would miss arguments this week and next, but would participate in the decisions based on legal briefs and transcripts.

Court spokeswoman Kathy Arberg said Rehnquist, who is undergoing chemotherapy and radiation, is 'tolerating his treatment well.' He is working from home, she said.

The chief justice has not said when he will return to the bench.

During Monday's session, several justices appeared skeptical of arguments that the federal government lacked the authority to enforce the nation's drug laws against users of medical marijuana. Several indicated they were worried about the potential for abuse and whether medical marijuana would be diverted to those who don't need it for treatment.

Some skepticism

'Everyone will say, `My marijuana is legal,'' said Justice Stephen Breyer.

The case arose when federal agents seized six marijuana plants from the back yard of Monson, who is 47 and suffering from spine disease. She, Raich and two of Raich's caregivers sued to block the federal government from enforcing the federal drug laws against them. Raich, 39, has several medical conditions, including a brain tumor and chronic joint pain.

A California federal appeals court agreed that Congress lacked authority to subject the women to federal drug laws, because their activity did not involve interstate commerce.

But Scalia and Justice Anthony Kennedy, who have supported the court's efforts to limit federal power, suggested that Congress could regulate such drug use, just as it could pass laws banning other types of drug possession.

'Why is this not an economic activity?' Scalia asked lawyer Randy Barnett, who represents the patients and caregivers.

Barnett said the drug is grown solely for the use of the patient. It is not sold and does not leave California, he said, so it does not concern interstate commerce and is not within Congress' power to regulate.

But Justice Department lawyer Paul Clement argued that even marijuana grown solely for personal medical use could affect commerce.

'What you're talking about here is possession, manufacture, distribution of a valuable commodity to which there's a ready market,' he said.

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