Source: San Francisco Chronicle (CA)
Author: Bob Egelko, Chronicle Staff Writer
Published: Tuesday, November 30, 2004 - Page A - 1
Copyright: 2004 San Francisco Chronicle
Contact: [email protected]
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
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
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
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
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
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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