Source: USA Today (US)
Author: Richard Willing, USA Today
Published: November 25, 2004
Copyright: 2004 USA Today, a division of Gannett Co. Inc.
Contact: [email protected]
Angel Raich, a 39-year-old mother of two, smokes marijuana eight times a
day in her Oakland home.
She does it to relieve pain from a brain tumor and more than a dozen
other maladies. And she does it with her doctor's blessing and the
permission of the state of California, which allows medical patients to
use the otherwise illegal weed if recommended by a physician.
Since 1996, California and 11 other states have passed laws that ease or
eliminate sanctions for the medicinal use of pot. But the federal
government says it still has the right to prosecute Raich and patients
like her because federal law considers pot a harmful drug without proven
On Monday, in a lawsuit brought by Raich and another patient, the U.S.
Supreme Court takes up a question that a growing number of medical
marijuana users say is critical to their physical well-being and that
the federal government says is important to its war against illegal
drugs: When it comes to pot and patients, does federal or state law
'Couldn't Go On' Without It
"I understand that my case brings up an interesting point of law that
fascinates judges and lawyers," says Raich, whose husband, Robert, is
one of the lawyers on her case. "But for me, it's a matter of life and
death. With cannabis, I can play with my kids, walk without a
wheelchair, sometimes even get a few hours sleep at night. Without it, I
couldn't go on for very long."
Despite a drug war waged by the Bush administration and the Clinton
administration before it, marijuana remains a big illegal business. In
2000, Americans bought about $10.5 billion worth of marijuana from drug
dealers, according to an estimate by the Office of National Drug Control
Policy. Last year, the FBI recorded 755,286 marijuana arrests — an
all-time high. Most arrests were for simple possession.
California voters approved the state's "compassionate use" act by voting
in 1996 to keep marijuana illegal except for patients under a doctor's
care. Raich, a self-described "proper conservative mom," tried pot a
year later at the suggestion of a nurse. According to papers filed by
Raich's physician in her Supreme Court case, Raich suffers from
scoliosis, severe chronic pain, joint dysfunction, endometriosis,
fibromyalgia, non-epileptic seizures, an inoperable brain tumor, a
uterine fibroid tumor and post-traumatic stress disorder, among other
Raich smokes marijuana in a pipe, eats it with her food and applies it
to her body as a salve at the rate of 3 ounces a week. She says it
curtails pain, eases breathing and has improved joint function.
Synthetic forms of marijuana, which are permitted by federal law, are
ineffective, Raich says. That's a common complaint of medical marijuana
The Clinton administration refused to recognize California's law and
moved to shut down cooperatives that were set up in Oakland and other
communities to grow and distribute pot to patients. Cases challenging
that action are moving through federal courts.
The Bush administration went further, however, and conducted raids to
destroy marijuana grown for use by patients. In August 2002 in Oroville,
Calif., a local district attorney blocked attempts by federal agents to
destroy marijuana plants before the U.S. Justice Department ordered him
to step aside. The owner of the plants, Diane Monson, a spinal-disease
sufferer, joined Raich in filing suit to block the federal government
from enforcing federal marijuana laws against California patients.
The medical marijuana users lost in U.S. District Court but won in the
U.S. Court of Appeals for the 9th Circuit, based in San Francisco. In a
2-1 decision, the appeals court found that using federal drug law to
trump California's medical pot provision is an overreach that is "likely
In briefs filed with the Supreme Court, the Justice Department argues
that the wording in the Constitution that allows the federal government
to regulate interstate commerce permits it to trump any state law that
permits drug use. Pot grown in California for local use must be
considered to be interstate commerce, acting Solicitor General Paul
Clement says. Locally grown drugs can readily enter the interstate
market and cannot be differentiated from drugs produced for drug
dealers, he says. Allowing the federal government to criminalize locally
grown pot is vital to control illicit trafficking, Clement argues.
Opponents of legalized marijuana have joined the case by filing briefs
that support the government. The Drug Free America Foundation notes that
under federal law, marijuana — like heroin and Ecstasy — is a drug with
"no currently accepted medical use."
The foundation argues that the concept of medical marijuana is a "Trojan
horse" that could open the way to making all pot legal by exploiting
public sympathy for the sick. Raw marijuana, the foundation's brief
says, is not an approved medicine. It is a dangerous drug with "proven
negative effects" on users, including disease sufferers.
Lawyers for Raich and Monson counter that growing pot locally for a
patient's own medicinal use is not an economic activity that the
Constitution's commerce clause covers. Attorney Robert Long cites
several opinions that indicate marijuana has been found to be an
effective medicine in some cases.
Quoting from a 1992 case that upheld a federal right to abortion, Long
writes that suffering by marijuana users "is too intimate and personal
for the (federal government) to insist ... upon its own vision."
The case could put conservatives on the Supreme Court on the spot. Since
the mid-1990s, Chief Justice William Rehnquist and Justices Antonin
Scalia and Clarence Thomas have trimmed federal attempts to enter areas,
such as gun regulation and pornography, that traditionally have been
covered by state or local ordinances.
But to do so in this case, notes Kermit Roosevelt, law professor at the
University of Pennsylvania, would place the conservatives on the side of
Rory Little, a former federal prosecutor who teaches at the University
of California's Hastings College of Law in San Francisco, says it "will
be tough" for the medical marijuana side to overcome a 62-year-old
Supreme Court precedent. In a 1942 case, an Ohio farmer growing wheat
for his own use was deemed to be participating in interstate commerce —
and therefore subject to federal controls.
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