Medical marijuana here? Don't hold your breath

November 28, 2004

Robbie Sherwood and Elvia Diaz, The Arizona Republic

Arizona is not a friendly state for medical marijuana users despite two successful voter initiatives. And a pending U.S. Supreme Court ruling on pot for the chronically ill isn't likely to change things. Arizona legal experts predict the Supreme Court will not allow sick people here and in 10 others states with medical marijuana laws to get around a federal ban on pot.

But even if the court, which heard arguments Monday, upholds a California law allowing medical marijuana for chronically ill patients who have a doctor's recommendation, the impact in Arizona is likely to be small.

That's because Arizona is the only state with a voter-approved medical marijuana law that requires a doctor's prescription, not just a recommendation. Unless the Drug Enforcement Administration changes its classification of marijuana as a harmful drug with no medical benefits, writing a prescription for it would still be illegal.

"Doctors are scared to death of getting their certification revoked," said Nick Hentoff, a Phoenix lawyer and member of the National Organization for the Reform of Marijuana Laws. "It might ease doctors' anxiety (if the court upholds the California law) but Arizona isn't a state friendly to medical marijuana."

Maricopa County Attorney Rick Romley, an ardent foe of legalizing pot in any form, said he predicts the court will overturn California's law. But if it didn't, prosecutors would probably not go after Arizonans with valid prescriptions for marijuana. But securing that prescription would be tricky, Romley said.

"Even if a doctor might be willing to prescribe it, it's required to be filled by a licensed pharmacy," Romley said. "Where would the pharmacy get it? I just don't see a great impact for Arizona."

Romley added that he believes the medical marijuana issue is a stalking horse for legalizing drugs, pointing out that when backers tried to remove the prescription requirement in a 2002 initiative, it failed.

Any doctor who writes an illegal prescription places his license in danger, said Dr. Edward Schwager of Tucson, chairman of the Arizona Medical Board.

But upholding California's law would be a step in the right direction for Ron Frank, a 55-year-old Phoenix resident who has been smoking marijuana for 25 years for his glaucoma and to ease chronic back pain. Frank hasn't been able to smoke for about two months and now faces possible prison time because he was caught for the third time with possession of small amounts of the drug. He supports legalizing marijuana for medical purposes only.

"I have to rest my eyes because they get blurry," Frank said. "Marijuana usually takes the blurriness away and the pressure inside my eyeballs."

The Court appeared hesitant Monday to endorse medical marijuana, the Associated Press reported.

Justice Stephen Breyer said supporters of marijuana for the ill should take their fight to federal drug regulators - before coming to the Supreme Court. Several justices repeatedly referred to America's drug addiction problems.

The high court heard arguments in the case of a California woman, Angel Raich, who tried dozens of prescription medicines to ease the pain of a brain tumor and other illnesses before she turned to pot.

Supporters of Raich and another ill woman who filed a lawsuit after her home was raided by federal agents. They argue that people with the AIDS virus, cancer and other diseases should be able to grow and use marijuana.

Their attorney, Randy Barnett of Boston, told justices that his clients are law-abiding citizens who need marijuana to survive. Marijuana may have some side effects, he said, but seriously sick people are willing to take the chance.

The San Francisco-based 9th U.S. Circuit Court of Appeals had ruled against the government in a divided opinion that found federal prosecution of medical marijuana users is unconstitutional if the marijuana is not sold, transported across state lines or used for non-medicinal purposes.

Lawyers for Raich and Diane Monson contend the government has no justification for pursuing small-scale users who are ill. Raich, an Oakland, Calif., mother of two teenagers, has scoliosis, a brain tumor, chronic nausea and other illnesses. Monson, a 47-year-old accountant who lives near Oroville, Calif., has degenerative spine disease and grows her own marijuana plants in her backyard.

The Bush administration argues that Congress has found no accepted medical use of marijuana and needs to be able to eradicate drug trafficking and its social harms.

The Supreme Court ruled three years ago that the government could prosecute distributors of medical marijuana despite their claim that the activity was protected by "medical necessity."

Teresa Campbell, a 49-year-old Mesa resident, would welcome anything that clears the way for Arizona doctors to prescribe marijuana for medical purposes. Her longtime friend, Josh Burner, who supports legalizing the drug, is dying of cancer and relies of marijuana, she said.

"It builds his appetite and eases his pain," Campbell said.

But Carolina Butler, 70, of Scottsdale, is hoping the Supreme Court closes the door on the use of marijuana because she believes it is a dangerous drug. Butler, who has campaigned against previous medical marijuana initiatives, feels it would send youngsters the wrong message that smoking marijuana is not harmful.

"Why would we want to legalize another dangerous drug?" she asked. "It has ruined lives."

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