Medical pot case in court

November 29, 2004

Bob Egelko, San Francisco Chronicle

Washington -- Two ailing Northern California women took their plea for legally tolerated medical marijuana to the U.S. Supreme Court on Monday and ran into skeptical questioning from both wings of the court.

The justices, minus Chief Justice William Rehnquist, who is being treated for thyroid cancer, heard arguments on whether the federal ban on marijuana possession and distribution overrides laws in California and nine other states allowing seriously ill patients to use pot with a doctor's recommendation. A ruling is due by summer.

The court last addressed the issue of medical marijuana in 2001, when it ruled that federal law did not contain a 'medical necessity'' exemption that would allow an Oakland cooperative to distribute the drug to patients.

The issue before the justices Monday was different: whether the federal government's constitutional power to regulate interstate commerce extends to locally grown marijuana, supplied without charge to patients whose use is permitted by state law.

The patients -- Angel Raich, 39, of Oakland, who suffers from a brain tumor, multiple bone ailments and a wasting syndrome; and Diane Monson, 47, of Oroville, who uses marijuana to combat severe back pain -- filed suit in 2002 saying the government has no such power. Their argument was tailored to appeal to the high court's dominant conservative bloc, which has issued several rulings since 1995 limiting federal power over the states.

One member of that bloc seemed receptive Monday.

Under California's regulatory system, 'none of this home-grown-for- medical-use marijuana will be on any interstate market,'' said Justice Sandra Day O'Connor, who often casts a swing vote in close cases. She also noted that medicine was 'an area traditionally regulated by the states.''

But two other conservatives, Justices Antonin Scalia and Anthony Kennedy, likened the case to a 1942 high court ruling that extended federal power over agriculture. That ruling allowed the government to regulate a portion of a farmer's wheat crop that was produced for home consumption without being sold or crossing state lines.

Marijuana supplied for free can be considered part of interstate commerce for the same reason, Scalia said: 'Since it's grown on the farm, it doesn't have to be bought elsewhere.''

The women's lawyer, Randy Barnett, a Boston University law professor, replied that the California law has only a 'trivial impact'' on interstate commerce because it is limited to a small number of sick people.

But Justice David Souter, part of the court's moderate-to-liberal wing, cited an advocacy group's estimate of 100,000 medical marijuana users in California and said the number would increase if the court ruled in their favor. Justice Stephen Breyer, a member of the same bloc, suggested the patients should take their appeal to the Food and Drug Administration, not the courts.

'Medicine by regulation is better than medicine by referendum,'' Breyer said, referring to California's 1996 ballot measure, Proposition 215, that legalized medical marijuana.

Breyer's suggestion didn't sit well with Raich, who attended the hearing after taking the marijuana she uses every two hours to ward off pain and keep food down. She said the federal government not only has vetoed every request to loosen restrictions on marijuana but also has thwarted medical research on the drug.

'If I was to not use cannabis and go straight to the FDA, I would be dead, '' Raich said after the hearing. She was joined at a news conference by her 16- year-old daughter, Erica, who said tearfully, 'Please do not take my mother away from me.''

The patients and their conditions went virtually unmentioned during the one-hour hearing, which was devoted largely to arguments over interstate commerce. Acting Solicitor General Paul Clement, the government's lawyer, said some doctors may disagree with congressional findings that marijuana has no medical value but have no power to exempt themselves or their patients.

The Ninth U.S. Circuit Court of Appeals in San Francisco handed down a ruling last December that shielded Raich and Monson, who also attended the hearing, from prosecution or other enforcement action by the federal government. The ruling also is the basis of lower-court appeals by the Oakland pot dispensary, which was closed after the federal government sued it, and by a Santa Cruz collective whose marijuana was seized by federal agents two years ago.

The Bush administration took the case to the Supreme Court, citing Congress' findings in the 1970 Controlled Substances Act that marijuana is a dangerous drug with no legitimate use and that in-state possession and distribution affect interstate trafficking.

'Any little island of lawful possession frustrates (the federal drug law), '' Clement told the justices. He said the case involves economic activity subject to federal regulation -- 'the possession, manufacture and distribution of a valuable product for which there is, unfortunately, a ready market.''

Rehnquist has not attended any of the court's sessions since the term began in October. But he is participating in cases, including this one, by reading briefs and transcripts of the hearings, Justice John Paul Stevens said at the outset of the Monday's session.

The case is Ashcroft vs. Raich, 03-1454.



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