Medicine or menace? Supreme Court should let states regulate pot

November 30, 2004

EDITORIAL, Register-Guard, Oregon

Pop quiz: Which of the following drugs have federally approved medical uses, yet are highly addictive and can be lethal in an overdose?

A. Morphine

B. Cocaine

C. Marijuana.

Answer: A and B.

A zero-tolerance Congress declared war on Woodstock Nation in 1970 by classifying marijuana as a Schedule 1 drug, devoid of medical value and illegal in all uses. Thirty-four years later, despite the passage of laws in Oregon and 10 other states allowing doctors to prescribe marijuana for certain conditions, federal Drug Enforcement Administration agents are still sledgehammering law-abiding cancer patients' front doors in order to confiscate their pot.

Now, the U.S. Supreme Court has an opportunity to create a common-sense antidote for that reefer madness. The court should reject the Justice Department's hyperbolic argument that medical marijuana laws undermine the entire federal drug enforcement effort and affirm the long-standing principle that states have the right to regulate the practice of medicine.

Unfortunately, the practice of medicine and the relief of patients' suffering could have little to do with the court's ultimate decision. The California case currently before the high court could turn on legal hair-splitting about whether the commerce clause in the Constitution gives the federal government the right to ignore state drug laws.

Forget the Institute of Medicine's 1999 study that said "For patients such as those with AIDS or who are undergoing chemotherapy, and who suffer simultaneously from severe pain, nausea, and appetite loss, cannabinoid drugs might offer broad-spectrum relief not found in any other single medication."

Instead, the justices are likely to spend more time analyzing how closely the California case matches facts presented in a 1942 trial involving a wheat farmer that is considered the classic commerce clause opinion.

That could be bad news for the plaintiffs in the California case - Angel Raich, an Oakland mother of two who used marijuana as a last resort to ease the constant pain of a brain tumor, and Diane Monson of Oroville, who used cannabis to help her stay mobile despite a degenerative spinal disease.

It would be difficult to find a more sympathetic plaintiff than Raich, whose inoperable brain tumor causes seizures and makes it hard for her to maintain a healthy weight. In a detailed affidavit enumerating a staggering list of painful diseases, Raich's doctor testified that she had tried 35 alternative medicines without success. If she is forced to stop using the marijuana she consumes every two hours, she "may suffer rapid death," her doctor said.

Raich and her co-plaintiff sued to block Attorney General John Ashcroft from prosecuting them for federal drug law violations. They argued that the commerce clause doesn't apply to their case because they grew their own marijuana within the state and no money ever changed hands.

That's a strong argument, and it's one that applies in Oregon, as well. Oregon's 1998 Medical Marijuana Act allows patients with doctor-approved medical cards to grow their own marijuana or to have caregivers grow it if the patients cannot. The law, which passed by more than 100,000 votes, does not allow marijuana to be bought or sold.

Justice Stephen Breyer correctly noted during oral arguments that Congress or the Food and Drug Administration were better venues than the courts to craft national drug policy. But legislation easing federal drug laws is a guaranteed nonstarter in a "tough on crime" Republican Congress and administration.

There is ample legal ammunition in the California case for a conservative Supreme Court to uphold a conservative interpretation of the commerce clause. Doing so will preserve the rights of individual states, such as Oregon, to act on behalf of their citizens when Congress will not.


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