Justices debate medical pot

November 29, 2004

David Whitney , Sacramento Bee

WASHINGTON - In a case with national implications, eight Supreme Court justices debated Monday whether California should be able to immunize from federal prosecution users who smoke marijuana for its medicinal value.

The issue before the justices is whether the state's 8-year-old law allowing marijuana use by patients with a doctor's recommendation is a bar to federal prosecution for possessing illegal drugs.

In a 2-1 decision, the San Francisco-based 9th U.S. Circuit Court of Appeals said it was. But after Monday's Supreme Court arguments, the justices seemed skeptical about protecting medical users from prosecution.

Chief Justice William Rehnquist, who has thyroid cancer, was absent from Monday's arguments but will participate in the ruling, expected in the spring.

Outside the Supreme Court, a small group of activists supporting the two California women who brought the case - Angel McClary Raich of Oakland and Diane Monson of Oroville - held signs saying 'stop arresting patients for medical marijuana use.'

A smaller group demonstrated for the prosecution. One carried a sign saying '182,000 kids in treatment for pot use - that's not medicine.'

While the case centers on California's Compassionate Use Act, approved by voters as Proposition 215 in 1996, the justices' ruling will have broad consequences in at least 10 other states where marijuana laws have been relaxed for patients with medical ailments that could be relieved by smoking pot.

The justices declined three years ago to protect distributors of medical marijuana from federal anti-drug charges. They are confronting a more personal issue this time - the power of federal agents to go after sick people who use homegrown cannabis with their doctors' permission and their states' approval.

A defeat for the two California women might undermine laws passed in the 11 states and discourage other states from approving their own. A loss for the government, on the other hand, could jeopardize federal oversight of illegal drugs and raise questions in other areas such as product safety and environmental activities.

Raich and Monson talked about the benefits of the drug after the arguments ended.

'I was in a wheelchair four years ago,' Raich, who suffers from various ailments including a brain tumor, told reporters outside the courthouse.

'Cannabis is the only medication that got me out of my wheelchair, and it's the only thing that keeps me here today,' she said.

Monson said that pot has relieved her of the excruciating pain of chronic back spasms. 'I am not happy with my government trying to turn me into a criminal,' she said.

It is unclear how many such people there are. By some government estimates, there could be 100,000 or more just in California who are undergoing chemotherapy or have other ailments and whose pain and suffering cannot be effectively treated by other medications.

But Acting Solicitor General Paul Clement told the justices that just because marijuana seems to have some therapeutic value recognized by California does not remove the burden on federal agents to enforce the country's strict prohibition on trafficking in marijuana.

'Smoked marijuana really doesn't have any future in medicine,' he said, pointing out that smoking is an unhealthy way to administer any benefit pot might have for the chronically ill.

Justice Sandra Day O'Connor wondered whether California was within its rights to insulate a small group of users who weren't getting their pot from street dealers or otherwise participating in interstate commerce that is required for federal intervention.

No, said Clement. Medical marijuana looks, tastes and smokes just like the illegal stuff, and Clement said there is no reason to believe it won't get mixed in the $10.5 billion illicit trade.

O'Connor seemed unconvinced, and later noted that one effect of protecting medical users would be to reduce demand for illegally grown and traded pot.

That might not be such a good thing, Clement replied, because with declining demand come lower prices, and law enforcement regards high prices as a discouragement to use.

Clement said there should be virtually no way any state or court can wiggle around the federal pot ban.

When Justice David Souter said that one way might be to distinguish between illegal and protected use on the basis of medicinal benefits, Clements flatly dismissed the suggestion as 'very difficult to police.'

On the other side, Randy Barrett, representing Raich and Monson in their suit to halt federal prosecution of medical users, ran into stiff questioning by the court's leading conservative. Justice Antonin Scalia zeroed in on the commerce question.

'Can't we infer a tremendous commercial market?' he asked. 'Possession is a form of participation in the market.'

Scalia went on say that at some communes in California, marijuana is available, and there is no proof that it is bought or sold, raising doubts about whether it is a commercial act that the federal prosecutors could stop. 'There's a whole lot of people there with a lot of medical need,' he said, jesting.

Justice Stephen Breyer seemed similarly unconvinced by California's law, saying it would 'create a mess' in enforcement.

Breyer suggested that if Barrett's clients were so convinced that marijuana was such a help to them they should go to the Food and Drug Administration and appeal for its reclassification as a medicine that can be prescribed by physicians.

'While the FDA can make mistakes, medicine by regulation is better than medicine by referendum,' Breyer said.

Barrett said the problem is that the federal government has stymied research into the legitimate uses of marijuana.

After the arguments, Raich said that medical pot is a life-and-death issue for her and that a loss before the Supreme Court could cause her to move.

'If I don't leave the country, I will be sitting on the steps of Congress demanding that they change the law,' she said.

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